Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

The facts in Pipecoil Technology Ltd v Heathcote

Mr Heathcoat (“the Claimant”) commenced employment with Pipecoil Technology Ltd (“the Respondent”) on 30 September 2008 as a mechanical design engineer. He suffered a serious injury in June 2009 and returned to work in August 2009 part-time. He returned to work full-time after Christmas in 2009. In April 2010 the Respondent became concerned about the Claimant’s timekeeping, his use of personal email at work, and what it considered to be erroneously completed time sheets. The Claimant was invited to a disciplinary hearing which he declined to attend. He was subsequently dismissed on all 3 counts by Mr Fiddes, the Managing Director. An appeal was later heard and dismissed by Mr Batchelor, the Operations Director.

The Claimant subsequently submitted a claim to the Employment Tribunal for (among other things) unfair dismissal. He succeeded in his claim and was awarded £17,445. The main reason for the Tribunal’s finding was that Mr Fiddes had predetermined the outcome of the disciplinary hearing. The Respondent appealed on the following points:

  1. The Tribunal failed to set out the issues which it had to determine
  2. The Tribunal misapplied the Burchell (“the reasonable range of responses”) test
  3. The Tribunal failed to recognise that the band of reasonable responses is to be applied when considering the fairness of the procedure adopted by the Respondent
  4. The Tribunal failed to consider whether the appeal stage could “cure” defects in the disciplinary
  5. The Tribunal erred in failing to apply the Polkey rule
  6. The Tribunal misapplied the law on failure to mitigate
  7. The Tribunal made an incorrect finding of fact (that Mr Fiddes had predetermined the outcome of the disciplinary hearing)

We shall address ground no 6 in this post, namely that the Tribunal misapplied the law on failure to mitigate.

The law relating to mitigation of loss

Under s.123 of the Employment Rights Act 1996 an employee’s loss should be calculated by the Employment Tribunal having reference to “’the same rule concerning the duty of a person to mitigate his loss as to damages recoverable under the common law”. An employee therefore has a duty to mitigate their loss once dismissed. This duty arises once the employee has been dismissed, not prior to dismissal or during the employee’s notice period.

The main question that arises in cases involving a failure to mitigate is: “has the employee made reasonable efforts to obtain alternative employment?”. The onus is on the Respondent (the previous employer) to prove that the employee hasn’t taken reasonable steps. The best thing that the former employee can do in the circumstances is make a chronology of all the applications they have made, whom the applications were made to, and the results of the applications. Further, the employee should save the evidence of such applications so they can present this to the Tribunal.

If the employee has failed to mitigate their loss sufficiently the Tribunal should reduce the compensatory award (not the basic award) utilising a “staged” procedure. This involves the Tribunal looking at the date on which they believe that the employee would have found work if the employee had made reasonable efforts to obtain alternative employment. The Tribunal would then make a finding as to what value of remuneration the employee would have received from that date and reduce the compensatory award accordingly. What the Tribunal should not do is reduce the compensatory award by a “broad brush” percentage amount.

The Employment Appeal Tribunal’s decision in Pipecoil Technology Ltd v Heathcote

The Employment Appeal Tribunal decided to uphold the Respondent’s appeals relating to the Polkey issue and failure to mitigate. The EAT considered that the Tribunal had failed to give adequate reasons for its decision that the Polkey rule didn’t apply in the circumstances and further failed to give adequate reasons for its decision that the Claimant had not failed to mitigate his loss. All of the other grounds of appeal were rejected. The EAT rejected the Claimant’s cross-appeal related to a failure to increase the compensatory award by 25% because of a breach of the ACAS Code of Conduct.

Our specialist unfair dismissal lawyers’ views on Pipecoil Technology Ltd v Heathcote

This case is interesting from the point of view of both liability and remedy. The case hinged upon the employer’s frame of mind at the time of the dismissal – something that’s fairly difficult to prove in the Employment Tribunal. The Tribunal does, in the circumstances, seem to have been fairly sympathetic to the Claimant in this respect – possibly because of the Claimant’s disability and/or the Respondent’s actions or attitude both at the time of the dismissal and during the proceedings. In terms of remedy, the Claimant’s ambivalent frame of mind towards what he wanted to do in the future weighed against him. The EAT also were wary of the fact that the Claimant may have been holding out on obtaining employment because of his personal injury claim. The best thing to do if you’re claiming unfair dismissal is be able to demonstrate to the Employment Tribunal that you’ve made reasonable efforts to obtain employment (using evidence of applications etc.)

Redmans offer Employment Tribunal representation to both Claimants and Respondents.

About Chris Hadrill

Chris is a specialist employment lawyer at Redmans. He specialises in contentious and non-contentious employment matters, including breach of contract claims, compromise agreements and Employment Tribunal cases. He writes on employment law matters on a variety of websites, including Direct 2 Lawyers, Lawontheweb.co.uk, LegalVoice, the Justice Gap and his own blog. Contact Chris by emailing him at chadrill@redmans.co.uk

Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

Share →

Our awards

Request a callback

Your name

Your email

Your telephone number

Contact us

Please feel free to discuss your own position and concerns. Contact your nearest office on:

T: 020 3397 3603
E: enquiries@redmans.co.uk
W: www.redmans.co.uk

Testimonials

4.73 Average

93 Reviews

Mohamed F

Excellent and professional solicitors, highly recommended

Posted 18 hours ago

Anonymous

Redmans Solicitors provided a professional and prompt service in dealing with my settlement agreement. They used their experience to negotiate a better deal for which I am grateful for. I highly recommend their services.

Posted 3 days ago

Cheryl R

Very efficient and friendly lawyers. I have used Redmans twice now and Chris Hadrill has been amazing to work with. Would highly recommend Redmans.

Posted 3 days ago

Anonymous

I found Redmans Solicitors to be extremely professional, dealing with my questions and concerns quickly and in detail. I would have no hesitation in recommending Redmans Solicitors to anyone.

Posted 3 days ago

Anonymous

I requested Redmans services on a redundancy case. Both Chris and Rana were great, thoughtful, very professional and responded quickly. They were very clear throughout the entire process, regarding the process and my options and I couldn't feel I had better legal advice for my case. Overall excellent service and I would certainly recommend and use their services again.

Posted 1 week ago

Anonymous

Responsive, patient, thorough and personable - an excellent service.

Posted 1 week ago

Anonymous

The team at Redmans, Chris Hadrill and Sacha Barrett were always very helpful and had expert knowledge to assist me during my employment law matter, I would not hesitate to recommend them to all!

Posted 1 week ago

Arun T

Chris was punctual, attentive and accurate. He answered my questions with clarity and avoided dubiosity. I would recommend him to anyone seeking legal advice within his remit.

Posted 1 week ago

Yulian Z

Great service

Posted 1 week ago

Anonymous

Excellent, professional service and a speedy resolution. Many thanks

Posted 1 week ago

Taral P

Sacha and Chris were both very helpful in closing out my matter. Sacha was very clear in helping me understanding the documents I needed reviewing, providing a professional service throughout.

Posted 1 week ago

Anonymous

Really pleased with the swift and professional service from Redmans. They provided very clear advice and helped conclude my matter with the minimum of stress or delay.

Posted 1 week ago

Matthew L

Redmans were very quick to respond to my initial enquiry, and provided me with a very effective and efficient service, generating a most satisfactory outcome. I would definitely use them again if the need arose.

Posted 1 week ago

Anonymous

First rate service. Warm and friendly whilst exceptionally efficient at the same time. I would highly recommend them.

Posted 1 week ago

Anonymous

Professional and helpful. Thorough and supportive.

Posted 1 week ago

Richard A

Excellent service, prompt replies, great advice

Posted 1 week ago

Anonymous

Very professional services

Posted 1 week ago

Margaret

Redmans Solicitors took a lot of the worry away and were very thoughtful and meticulous in their dealings with my case , thank you very mush , great service and a great job

Posted 1 month ago

Mark B

Prompt efficient service. Hourly, and part thereof, billing got a bit stressful at times - as opposed to flat fee - made me think twice about sending an email or making a quick call when I had a query because it would have eaten up minutes from my budget. But happy with the legal service I received overall and would recommend.

Posted 1 month ago

Anonymous

Chris Hadrill has provided a truly wonderful service and was willing to lend his support and expertise at a time when other solicitors, only wanted to discuss their fees! A clear thinking and down to earth professional, Chris can be trusted to listen carefully to your matter, cut through the fog, and advise you on the best (and most realistic) way forward, saving you time, money and heartache. It will be helpful if you first get your ducks in a row in terms of documents / evidence etc. and then contact Chris, (that’s what we did) as this will help your matter to be dealt with faster. The more organised and together you are the more successful you will be. You'll be fine with Chris, I highly recommend him. Good luck!

Posted 1 month ago

Richard v

Excellent Service

Posted 2 months ago