Want to talk to an expert employment law solicitor?

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

The facts in Commercial Motors (Wales) Ltd v Howley

Mr Howley (“the Claimant”) was employed by a company until he was transferred under the Transfer of Undertaking (Protection of Employment) Regulations 2006 (“TUPE”) to Commercial Motors (Wales) Ltd (“the Respondent”). The Respondent failed to “take over” his contract of employment and the Claimant was dismissed on 3 February 2009. The Claimant subsequently submitted a claim of automatic unfair dismissal to the Employment Tribunal and succeeded in his claim. The Employment Tribunal awarded the Claimant

  • Compensation for past and future loss of £40,021.50 (which was subsequently reduced to £20,010.75 after a Polkey reduction)
  • £6,003.23 because of the Respondent’s failure to complete the statutory procedures that were in force at the time

The Claimant was also awarded losses during his 3 month notice period of:

  • £3,993.36 for the loss of his company car
  • £96 for the loss of the use of his mobile telephone; and
  • £300 for loss of his fuel allowance

The Respondent appealed on the following grounds:

  1. The Claimant was not entitled to claim for the loss of the company car and fuel allowance
  2. That the award for the loss of the mobile telephone by the Claimant was perverse;
  3. That the Employment Tribunal failed in their analysis of the Claimant’s mitigation of loss; and
  4. That the award of loss of earnings was excessive and not a decision that any reasonable Tribunal would have come to.

The Claimant cross-appealed on the basis that he had not been awarded losses for a training the course and that the Employment Tribunal failed to award losses for loss of the company car, mobile telephone and fuel allowance beyond the duration of the Claimant’s notice period.

The law relating to mitigation of loss in unfair dismissal cases

Claimants have, under s.123 of the Employment Rights Act 1996, a duty to mitigate their loss. A Claimant will be expected to explain to the Employment Tribunal what action they have taken in respect of mitigation. This includes looking for work and applying for state benefits. The steps that the Claimant has to take are only what are reasonable in all the circumstances of the case – the Employment Tribunal will not apply an overly onerous burden to Claimants. Further, the burden of proof is on the Respondent to show that the Claimant has failed to take reasonable steps in the circumstances. The Respondent will therefore often attempt to show that the Claimant has not applied for any (or enough) jobs and will seek to introduce evidence of vacancies. The Respondent may seek to argue that the Claimant has failed to mitigate their loss in other ways, such as:

  • Failure to appeal their dismissal
  • The unreasonable refusal of an offer of employment
  • Pursuing an unreasonable career change or incurring unreasonable fees for training courses

The Employment Appeal Tribunal’s decision in Commercial Motors (Wales) Ltd v Howley

The Employment Appeal Tribunal dismissed the Claimant’s appeals. It allowed the Respondent’s cross-appeal on the first ground above. The Employment Appeal Tribunal found Claimant had had access to a company car for his new employment for the period of the two months that he was working there. He had submitted invoices to his new employer for this and was therefore deemed to have mitigated his loss in this respect (and that of the fuel allowance). The amount of the sum awarded for the loss of the company car and the loss of the fuel allowance was therefore decreased by four-ninths to reflect the Claimant’s mitigation.

Our specialist employment lawyers’ thoughts on Commercial Motors (Wales) Ltd v Howley

This is a rather unremarkable case that turns upon the reasonableness of the Claimant’s actions with regards to mitigating his loss.

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

4.72 Average

89 Reviews

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 3 days ago

Anonymous

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

Posted 6 days 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 6 days 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 1 month ago

Anonymous

Very happy from service received. Highly recommend

Posted 1 month ago

Colin W

Very professional and thorough. Sachs who dealt with the bulk of my case was excellent Thank you. .

Posted 1 month ago

Anonymous

I was generally impressed with the fast turn around, efficiency, responsiveness, and consideration of circumstances. I needed a couple of areas of advice quickly and with Redmans help was able to get to a conclusion quickly and with minimum stress. They were friendly and professional throughout - I'd use them again.

Posted 1 month ago

Anonymous

The guidance and assistance I recently received when using Redman's was fantastic. Caroline & Chris were both very informative and understanding walking me through each step. Thank you.

Posted 2 months ago