The case of NSM Musci Ltd v Mr McArdle before the EAT concerned, amongst others, the issue of compensation for unfair dismissal.  The Employment Tribunal had concluded that the Claimant (previously employed by NSM in manufacturing and supplying jukeboxes) could be compensated for electing to train as a teacher.

The EAT held that a Tribunal were entitled to reach that decision, as they put it ‘If you are an unemployed miner from Barnsley, a trawlerman from Grimsby or a potter from Stoke-on-Trent there may come a time when quite simply the only way you are going to get employment is to retrain’. However, they determined that the Tribunal failed to make sufficient findings of fact as to whether re-training was a realistic mitigation of loss or a decision to make a career change.  They highlighted the following points for consideration (which are a useful checklist for any advisors when considering mitigation in the context of a career change):-

  • the period of time the Claimant was out of work before deciding to re-train(in this case only 4 weeks);
  • how much he had looked for other employment;
  • level of unemployment in that particular area with the skills the Claimant had;
  • how long it was anticipated it would have taken to find another job at or about the same level.

The case has therefore been sent back to the same Tribunal to reconsider the issue of compensation.