Compensation in Unfair Dismissal Claims

Even if a dismissed employee has a good claim of unfair dismissal, any award may be reduced by the Tribunal if he or she has taken insufficient steps to find suitable alternative employment.

 

In the recent case of Kelly v University of Southampton [2010] in the EAT, Ms Kelly was dismissed because her work permit to work in the UK had expired. On the facts the dismissal was unfair. Later, the University advertised two suitable positions, but she did not apply for either, even though she had expressed an interest in (by this time she had got indefinite leave to remain in the UK).

 

At the Remedies Hearing, the University argued that Ms Kelly had failed to mitigate her loss because she had failed to apply for either position. Ms Kelly argued in turn that there was little chance she would have been appointed to either anyway, given the competition.

 

However the EAT held that she should only recover loss of earnings up to the date when she might have been appointed to one of the jobs, had she applied. The Tribunal had been entitled to make this finding, based on the fact that she had worked for the university in a similar post for four years and that although there had been some criticisms of her work, these were not why she had been dismissed. It was reasonable to conclude that she was likely to be appointed if she had applied.

 

Although an unusual case, employers defending unfair dismissal claims might well want to compile details suitable alternative positions advertised, so that in case the employer loses, the claimant can then be put on the spot and asked why they did not apply for this or that other job.

      

James Carmody

RECULVER SOLICITORS