Our next case is thankfully not as gruesome as the first and concerns constructive dismissal and mitigation of losses.

Under Section 123(4) Employment Rights Act 1996, Claimants have a duty to mitigate their losses in unfair dismissal claims and a failure to do so will reduce the compensatory award. This includes looking for work, not rejecting work opportunities offered, and, if no work is forthcoming, applying for relevant benefits.

Therefore, the question from this case is:

Can a Claimant who has been found to be unfairly constructively dismissed be denied compensation for declining an offer of re-employment from the Respondent?

Mr Wright, the Claimant, resigned from his position at Silverline Care Caledonia Ltd, the Respondent, due to a breach of the implied term of trust and confidence following the Respondent ignoring his concerns about, and, failing to consult him on, how management restructuring would impact patient care.

Upon his resignation, the Claimant also raised a grievance about this issue. The Respondent upheld the grievance, decided against the management restructuring and offered him his old job back. The Claimant rejected this because, despite having his grievance upheld, he still felt failing to consult him the restructuring, and, ignoring his concerns, meant the implied term of trust and confidence was still breached and he felt uncomfortable about working there again.

The Claimant initiated a constructive dismissal claim and at tribunal the ET held he had been constructively dismissed. However, the ET did not grant a compensatory award because he had failed to mitigate his losses by refusing an offer of re-employment from the Respondent. The Claimant appealed and the EAT allowed the appeal and remitted it to a fresh remedy hearing.

The takeaway point:

The EAT was unsure whether it was perverse to expect an employee whose term of implied trust and confidence had been breached to return to work for the employer who had breached it. Whilst it looks likely the Claimant will be awarded a compensatory award there is a chance the remedy hearing will agree with the ET.

However, it would seem that the Claimant here will be awarded money and if so it would therefore not be considered negligible mitigation of losses for a Claimant to reject an offer of re-employment.