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 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

    4.78 Average

    261 Reviews

    Karen T

    Great service. Thank you.

    Posted 1 day ago

    Anonymous

    Excellent service from Chris & Mel Chin. The best outcome was achieved from the redundancy process. They were extremely thorough, listened carefully and acted swiftly on my behalf. I highly recommend Redmans Solicitors

    Posted 2 days ago

    Shanine M

    Excellent service, thank you so much!

    Posted 3 days ago

    Anonymous

    I found Caroline and Chris very Helpful and provided excellent service. Caroline especially provided great legal advice and made me feel at ease with the whole process. I would highly recommend them. Thank you!

    Posted 3 days ago

    Gayle B

    Excellent company very professional would definitely recommend

    Posted 5 days ago

    Alex K

    Redmans provided an excellent service, timely and effective. Will definitely recommend.

    Posted 5 days ago

    Anonymous

    Great job done on my employment law

    Posted 5 days ago

    Dominica S

    Caroline & Chris were very prompt and efficient.Very happy with the service and will definitely recommend Redmans Solicitor to everyone !

    Posted 6 days ago

    Sandra K

    If you are looking for a group of solicitors who are Professional, Caring and on point, then look no futher than Redmans. I was literally hand held through out my case. Can not find fault with this company, very happy with the result and the service i received. Would highly recommend Redmans.

    Posted 6 days ago

    Anonymous

    I found dealing with Redmans a pleasure. I got to speak to someone quickly, the advice was profferred promplty and the service was not 'pushy'. In addition, the administration was excellent. What more could you ask for?

    Posted 6 days ago

    ALISDAIR L

    Redmans did a brilliant job regarding my redundancy agreement. I miss read an extra charge which wasnt the case so doing a new review to clarify. I would recommend Redmans for any employment law issues you may have.

    Posted 1 week ago

    Christos G

    Great legal advice and quick correspondence. Very supportive and helpful through the entire process. Thank you Redmans!

    Posted 1 week ago

    Anonymous

    Chris Hadrill advised me on a redundancy settlement agreement. He was very responsive, easy to deal with and gave me good advice at a stressful time.

    Posted 1 week ago

    Zara M

    Rana at Redmans gave me support and confidence I needed to ensure a wrong, was put right. I couldn’t recommend enough.

    Posted 1 week ago

    Stuart T

    Chris provided an excellent service, he was efficient and friendly and I had no doubt when recommending him to my colleagues

    Posted 1 week ago

    Anonymous

    Excellent service, prompt responses. Chris Hadrill provided excellent and efficient service.

    Posted 1 week ago

    Jane M

    Wonderful solicitors who really listen to you and who are there to offer expert legal advice but they also have a personal touch and you really feel supported both from a legal aspect but also from a personal aspect. They really listen .

    Posted 2 weeks ago

    Anonymous

    They dealt with my case professional and swiftly. The advise was helpful and enabled me to make the right decisions in my case.

    Posted 2 weeks ago

    Anonymous

    I have received a great legal advice from Redmans on a very short notice. I’d highly recommend them.

    Posted 2 weeks ago

    Michael D

    Excellent, efficient advice - the whole matter was concluded with minimum fuss and an excellent outcome.

    Posted 2 weeks ago

    Michael Q

    I found Redmans via the internet. I was looking for a solicitor with employment law experience and they fitted the bill. I was very pleased with the advice/service that I received leading to a good outcome for me.

    Posted 2 weeks ago