Had there been a failure to mitigate loss where an employee declines to accept re-employment in the same role on a self-employed basis? There could be, if the loss of ability to bring an unfair dismissal claim was the only way in which the new terms were inferior, said the Employment Appeal Tribunal (“EAT”) in F & G Cleaners Ltd v Saddington. However, in this case, on the facts, there was no failure to mitigate loss.
Kate Fretten, Employment Partner, says "The dismissal took place after a TUPE transfer, where the new employer refused to accept that they employed the claimants, and then offered them work on terms that included self- employment with lower earnings. It was not unreasonable of the employees to refuse this, so there was no failure to mitigate."
The EAT also found the duty to mitigate had not arisen when the offers were made. It did not commence until after dismissal. Here the employees were dismissed by the offer of the new, inferior terms, which entitled them to resign and be treated as dismissed under TUPE. The offers were therefore prior to the dismissal and refusal to accept them could not be a failure to mitigate.
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