Refusing offer of self-employment is not failure to mitigate
In a recent case (F&G Cleaners v Saddington), the claimants’ employer supplied window cleaning services under contract to a local authority. The employer lost that contract. The respondent company won it. It refused to employ the claimants but offered them the work as self-employed contractors. They refused. The EAT decided that this was a TUPE transfer and so their refusal amounted to a ‘dismissal’ under TUPE reg 4(9). Even though the respondent company had never employed the claimants, it was liable for their unfair dismissal.
But had the claimants failed to mitigate their loss by not accepting the respondent’s offer?
No, said the EAT.
The whole point of the TUPE regulations was to preserve employee rights, including statutory continuity of employment. The claimants would have lost this, and the guarantee of being paid for a full week’s work every week, if they had accepted the offer
Points to note –
- In fact, the EAT considered that, in this case, the duty to mitigate had never arisen. A claimant can only mitigate his loss after he has been dismissed. In this case, the offer of self-employment was made before the ‘dismissal’ took place so the claimants’ refusal could not be regard as failure to mitigate.
- However, the EAT accepted that, in some cases, it might be a failure to mitigate for the claimant to refuse to accept such an offer. Each case must be looked at on its own facts and the question to be asked is ‘Was this employee acting unreasonably in rejecting this offer?’
Other cases on the employment case law update for September 2012:
> Constructive dismissal: Roberts v Whitecross School
> Constructive dismissal: Assamoi v Spirit Pub Co
> Restrictive covenants / directors': Safteyney Security Ltd v Coppage
> Redundancy: Wrexham Golf Club v Ingham