Want to talk to an expert employment law solicitor?

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

This case concerns a transfer of a window-cleaning contract (and therefore the employees engaged on that contract) from company A to company B. Company B refused to employ the employees engaged on the contract on their original terms but offered alternative employment prior to their dismissal. The employees refused and claimed that they were unfairly dismissed because of the TUPE transfer. They succeeded but company B appealed on the basis that the Employment Tribunal had failed to adequately consider whether the employees had reasonably refused to accept alternative employment. The Employment Appeal Tribunal rejected the appeal, stating that the Tribunal had 1) had reference to a wide range of circumstances in determining that the refusal was reasonable and 2) that the employees were under no duty to mitigate as the alternative employment had been offered prior to their dismissal.

The facts in F & G Cleaners v Saddington & Ors

Mr Saddington, Mr Oliver and a number of other persons (“the Claimants”) were employed by Actual Support Services Ltd (“Actual”) to provide services on a window-cleaning contract for the London Borough of Redbridge (“Redbridge”). In 2008 Redbridge re-tendered the contract and F & G Cleaners Ltd (“F & G”) successfully tendered for the contract. Actual then supplied information to F & G as to the nature of the terms of employment of its employees. F & G was suspicious of this and believed that Actual were inflating the value of the contracts of employment. It asked for further information from Actual prior to the handover date of 1 August 2008 but none was forthcoming. On 8 August 2008 Mrs Oliver asked F & G about her husband’s employment situation. F & G responded by stating that Mr Oliver had never and did not work for them. However, on 12 August a manager of F & G’s met with the Claimants and discussed alternative employment – ostensibly on the basis of a CIS contract (which would have meant that the Claimants were self-employed) instead of the contracts of employment they had previously worked under. This would have meant a reduction in their daily wage, a change to their working week, and a change to their holiday entitlement. The Claimants refused this offer and subsequently issued a claim in the Employment Tribunal for TUPE-related unfair dismissal.

The Tribunal found that the TUPE transfer of employment was the principal reason for the Claimants’ dismissal and that the Claimants had been automatically unfairly dismissed. F & G appealed on the basis that the Employment Tribunal had erred in not considering whether the Claimants had taken reasonable steps to mitigate their loss.

The law relating to mitigation of loss in TUPE unfair dismissal cases

It is well-established that dismissed employees have a duty to mitigate their loss (by finding new employment). A failure to mitigate loss can occur in the following circumstances:

  1. If the Claimant unreasonably fails to look for new employment; and/or
  2. If the Claimant unreasonably refuses an offer of work

We’ll be looking in this post at the second element, the refusal of alternative employment. If the Claimant refuses an offer of work (whether this offer is from their old employer or from a new third party) then their refusal must be reasonable in all the circumstances. What, therefore, affects the reasonableness of a decision to refuse an offer of alternative employment? The Tribunal will consider the following:

  1. The circumstances in which the offer was made and refused;
  2. The attitude of the employer;
  3. The way in which the Claimant had been treated; and
  4. All the surrounding circumstances

The Employment Appeal Tribunal’s judgment in F & G Cleaners v Saddington & Ors

The Employment Appeal Tribunal (“EAT”) considered that the Claimants had not unreasonably failed to accept an offer of alternative employment from F & G after the TUPE transfer. F & G’s contention was that the Tribunal had erred in deciding that the Claimant’s rejection of the offer was unreasonable as they would have lost their statutory rights. The EAT rejected this argument and found that the Tribunal had had reference to a wider set of considerations in determining that the refusal to accept the offer, including the nature of the contract that they would have been engaged on, the daily wage that they would have received, and their holiday entitlement (among other things). Further, the Claimants had not been dismissed at the time of the offer of the alternative employment (prior to 1 August 2008) and that the Claimants therefore had no duty to mitigate their loss.

Our specialist employment lawyers’ thoughts on F & G Cleaners v Saddington & Ors

This is an interesting case although we’re not quite sure as to why, firstly, this case went all the way to the Employment Tribunal and, further, why F & G insisted on appealing, unless there was some disagreement between the parties as to whether the failure to mitigate was a substantive issue throughout.

Redmans offer TUPE advice for employers and are also offer no win no fee unfair dismissal representation

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 first name (required)

    Your last name (required)

    Your email (required)

    Your telephone number (required)

    Brief details of your enquiry

    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

    4.76 Average

    235 Reviews

    Paul O

    Chris & Rana guided me through a redundancy discussion. Prompt & patient assistance with the documents & meetings. Clear advice & fast responses regarding negotiations. Would definitely recommend & would use again without hesitation.

    Posted 1 month ago

    Anonymous

    Outstanding, efficient service. Thank you so much!

    Posted 1 month ago

    Jaswant S

    Very very happy with the good service I got Thank you so much for your help

    Posted 1 month ago

    Anonymous

    Mel and Chris were fantastic and supportive throughout! 1000% recommend.

    Posted 1 month ago

    Emma D

    Good responsive service

    Posted 1 month ago

    Mike T

    Good efficient service.

    Posted 1 month ago

    Brenda G

    Very professional and helpful

    Posted 1 month ago

    Charles A

    Chris Hadrill was recommended to me when I found myself in need of a solicitor at very short notice. He contacted me almost immediately to arrange a call. Chris handled my case in a professional and timely manner and kept me notified throughout. Chris inspired confidence and made me feel I was being cared for. If ever I'm in need of legal representation, I would not hesitate to contact Chris. And will gladly recommend him to family and friends.

    Posted 1 month ago

    Rosalind R

    I was very happy with the service that I received from Redmans Solicitors. They were able to advise me accordingly with regards to my employment matter and stay within the agreed costing.

    Posted 1 month ago

    Karl B

    Caroline and Chris were so helpful and friendly. Couldn't of asked for a better service.

    Posted 1 month ago

    Dimitrios P

    Excellent, professional service, in time and within the expected value.

    Posted 1 month ago

    Barbara K

    Everything quickly and fairly. Very professional. Thank you.

    Posted 1 month ago

    Sabrina J

    I received a efficient professional service during the whole process of liasing between myself and my former employer to getting all forms signed and receiving my redundancy payment in full in the summer of this year.

    Posted 1 month ago

    Anonymous

    I received legal advice on a redundancy settlement agreement from Redmans Solicitors and was very impressed by the quality of their service. Chris Hadrill is highly experienced in settlement matters and was especially understanding of the particulars of my case, going out of his way to ensure that it was resolved quickly and with the utmost professionalism. I have no hesitation in recommending Redmans to anyone in need of employment advice and settlement resolution.

    Posted 1 month ago

    Anonymous

    Excellent service, with full explanations of everything needed. Both Chris and Mel answered all emails very promptly and were personable and efficient.

    Posted 1 month ago

    Anonymous

    I would like to thank Chris Hadrill, in particular who handled my case, for all his hard work, expertise and dedication. He listened with empathy and offered suitable advice, which made me feel valued and confident through a difficult time. I would highly recommend Chris and the team at Redmans Solicitors. Thank you.

    Posted 1 month ago

    Yann G

    Yann Guezennec / Chris Hadrill - Thanks for the detailed, informed and professional advice for my settlement. When comprise is the rule I felt we could have been maybe a bit more aggressive from the start. However an acceptable outcome considering the situation. Thank you

    Posted 1 month ago

    Valentina D

    Great service from Mel, she was very good at explaining every part of the settlement agreement and very efficient dealing with the HR team. Very professional team, I would definitely use them again in future if the opportunity came up.

    Posted 1 month ago

    Olaf S

    I was very happy with the service that I have received. Thank You Regards

    Posted 1 month ago

    Rebecca A

    I had a wonderful solicitor called Caroline who was so helpful and gave me all the information I need and explained everything in detail so I was crystal clear. Would highly recommend if you are in need of a solicitor!

    Posted 1 month ago

    Gareth J

    Very efficient, helpful and pragmatic support from Caroline. Happy to work with my requirements / suggestions but also made some very good points which helped to achieve a higher settlement amount. Would highly recommend Caroline and Chris.

    Posted 1 month ago