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Mitigation of Loss

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[Thanks to Sarah Russell, solicitor at Russell, Jones and Walker, part of Slater & Gordon Lawyer, for preparing this case summary]

Had there been a failure to mitigate loss where an employee declined 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 EAT in F & G Cleaners Ltd v Saddington .

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, lower earnings etc. 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 per regulation 4(9) of TUPE. The offers were therefore prior to the dismissal and refusal to accept them could not be a failure to mitigate.