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 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

4.76 Average

164 Reviews

Samantha K

Absolutely brilliant thank you. Caroline Lewis is a legend

Posted 2 weeks ago

Anonymous

The legal advice was clear and helpful.

Posted 2 weeks ago

Davinder P

Good Service

Posted 2 weeks ago

Adrian V

I was using Redmans services for a Settlement Agreement. Very quick and professional service. The outcome was favourable and I was very pleased with the amendments and results. Pretty glad to recommend them for any type of legal advice.

Posted 2 weeks ago

Anonymous

Very responsive, efficient, clear and supportive. Thank you! Highly recommend.

Posted 3 weeks ago

Tiago S

Chris was always prompt to help me with legal matters that are beyond my comprehension and very helpful leasing with my former employer. I would recommend Redmans Solicitors to everyone who needs help.

Posted 3 weeks ago

Anonymous

Fast and professional advice tailored to what was needed. Thanks for your help Chris Hadrill and team.

Posted 3 weeks ago

Peter S

Really pleased with the outcome and the advice I had from Chris and Sacha.

Posted 3 weeks ago

Harika A

Redmans solicitor's helped me with my settlement agreement, Chris has been very helpful throughout the process.He was very prompt in his responses and made my settlement look simple.Special thanks to Caroline for her efficient communication, thorough explaination of contract terminology and negotiations.I highly reccommend Redmans solicitors for anyone seeking employment related legal help.

Posted 4 weeks ago

Anonymous

Good and quick service

Posted 4 weeks ago

Ricky D

Very satisfying to be assured of such attention and professionalism.

Posted 4 weeks ago

Anonymous

Excellent service - thankyou

Posted 4 weeks ago

Anonymous

Efficient, timely and friendly support and advice

Posted 4 weeks ago

Ahmed S

They are always on hand when you need them and provide support even when its not necessary.

Posted 4 weeks ago

Nemen S

Wonderful experience.Chris was very responsive and provided an excellent service. A real professional who I would recommend to anyone

Posted 4 weeks ago

Anonymous

Their guidance was clear and they provided me with all the information I required. Friendly yet professional

Posted 4 weeks ago

Anonymous

Chris @ Redmans assisted me with an employment issue. Firstly, he was very proactive in coming back to my initial enquiry and then helped to clearly lay out the options that I had in relation to my position. He then assisted with the preparation of my case, which led to a very satisfactory outcome. I would highly recommend the quality of service & professionalism offered by Redmans Solicitors.

Posted 4 weeks ago

Anonymous

Great service

Posted 4 weeks ago

Anonymous

Chris was very effective and decisive in dealing with my matter. I felt guided, and the pressure to make decisions was taken off my shoulders; he knew what needed to be done and I was happy to follow his advice. The result of the legal dispute was a great success for me. He is also kind and personable. The only thing that I would say it could be improved, is the accuracy of cost estimation at the beginning: not many activites, that could not have been forseen had to take place, but costs went up more than double in the end. Overall very good and trustworthy. I would definately recommend and use Redmans services again.

Posted 4 weeks ago

Liz P

An excellent professional service was provided by Chris Hadrill and Mel Chin. Efficient and trustworthy - would highly recommend this company.

Posted 1 month ago

Anonymous

Redmans Solicitors were great. They were able to advice me quickly and efficiently! I would recommend them, as a good solicitors to use.

Posted 1 month ago