Refusing An Offer Of Self-Employment Was Not A Failure To Mitigate

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...