This is a decision by the EAT on the issue of causation where a tribunal is determining responsibility for losses in an unfair dismissal claim.
The EAT found that, in this case, the tribunal had failed to take into account facts which were relevant to the issue of causation when reaching its decision on remedy. Specifically, the tribunal had failed to consider whether the new employment secured by the claimant was coming to an end in any event, due to economic circumstances.
Miss J Miller was employed by Bellway Homes Ltd (BHL) until 6 May 2008, when she was selected for redundancy. Following termination of her employment with BHL, Miller immediately secured alternative employment with a new employer, Handover.
On 16 September 2008, Miller resigned from her employment with Handover. The tribunal held that Miller’s resignation was in no way connected to BHL and, therefore, BHL was not responsible for any losses incurred after the date of her resignation. However, during the tribunal hearing, Miller presented evidence, unchallenged by BHL, that her employment with Handover would have ended, in any event, in November 2008. Accordingly, Miller claimed that BHL was responsible for losses from November 2008 onwards.
The EAT held that there was no indication in the tribunal’s reasons that the tribunal had taken into account the fact that Miller’s employment with Handover would have ended, in any event, in November 2008 and this was relevant to the issue of whether BHL was responsible for losses from November 2008 onwards.
The EAT remitted the issue of remedy back to the same tribunal for reconsideration.
Simply because a claimant has secured alternative employment does not prevent losses continuing to accrue for which the respondent may be liable.
When assessing the extent of a claimant’s losses, the tribunal must take into account all relevant facts. As was the case here, the unchallenged evidence that Miller’s employment with Handover would have ended, in any event, in November 2008 was relevant to the level of losses that the BHL were responsible for.
What you should do
If faced with defending an unfair dismissal claim remember to collate evidence relevant to the issue of remedy. For example, details of job vacancies which the claimant would be suitable for. This type of evidence can help to persuade a tribunal that the claimant has failed to fully mitigate his or her losses.