The EAT has held in F & G Cleaners Limited v Saddington and others UKEAT/0140/11 that employees who were unfairly dismissed contrary to TUPE did not fail to mitigate their loss where they refused the transferee's offer of self-employment.
Mr Saddington and Mr Oliver were employed by Actual Support Services Limited which provided window cleaning services to a local authority.
Following a re-tendering process, the contract moved to F & G Cleaners but F & G refused to accept that TUPE 2006 applied to the transfer and refused to employ Mr Saddington and Mr Oliver. Two weeks after the transfer, F & G offered to engage them as self-employed contractors on a daily rate and with no guarantee of regular work. They both refused the offer and brought claims of unfair dismissal.
The Tribunal found that there had been a TUPE transfer and that Mr Saddington and Mr Oliver had been automatically unfairly dismissed. F & G argued that they had both failed to mitigate their losses by refusing its offer of work but the Tribunal disagreed, as did the EAT, and concluded that the employees had not acted unreasonably. Accepting the offer would have been disadvantageous to the employees and would have resulted in them giving up valuable statutory rights.
Comment: This is an important decision and shows that Tribunals cannot easily be persuaded to undermine the protection afforded to employees by TUPE 2006 or to allow a company to profit from its own wrongdoing. However, each case is likely to depend on its own facts and it will not always be reasonable for an employee to refuse an offer of re-employment from a former employer.
http://www.bailii.org/uk/cases/UKEAT/2012/0140_11_1608.html
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