This week’s care roundup
Duty to mitigate essential
Wilding v British Telecommunications plc, unreported, March 2002, CA
Wilding brought successful claims of unfair dismissal and disability
discrimination.
Prior to the separate remedies hearing, BT offered Wilding part-time
employment based on the advice of its medical expert. Wilding rejected the
offer saying he had lost all trust and confidence in BT.
The tribunal found that Wilding had not mitigated his loss and so was not
entitled to certain damages. Wilding unsuccessfully appealed to the EAT arguing
that the tribunal had erred by not applying an objective test as to why he had
refused the offer of part-time employment.
Wilding appealed to the Court of Appeal. The burden was on BT to show that
Wilding had failed to mitigate his loss by unreasonably refusing the offer of
re-employment.
The test of unreasonableness was an objective one based on the totality of
the evidence taking into account the circumstances in which the offer was made
and refused, the attitude of BT, the way in which Wilding had been treated and
his state of mind.
The issue for the tribunal was not whether Wilding could reasonably have
refused the offer but whether he acted unreasonably in refusing it. The
tribunal had properly applied the right test and the appeal was dismissed.
Deduction from wages lawful
Mackay v South Lanarkshire Council, ALL ER (D) 183 2002 EAT Scotland
Mackay, a senior social worker, was demoted following disciplinary action
and his salary was reduced. The tribunal rejected his claim of an unlawful
deduction from wages.
Mackay appealed arguing that he was unaware of the disciplinary procedure
because the procedure was found in a document which had not existed at the time
he entered into a new contract of employment and so did not form part of his
contract.
The appeal was dismissed. The tribunal did not believe, or at least did not
accept Mackay’s evidence that he did not know of the existence of the
discipline procedure document and its contents. His length of employment in
local authorities was such that he was taken to have known of the existence of
some discipline procedures.
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Further, it was highly relevant that he had not challenged the validity of
the procedure when it was initiated and it was too late to suggest that it was
not part of his contract.
Where an employer acted lawfully under a contract of employment the fact
that this caused a loss of income did not constitute a breach of contract nor
an unlawful deduction of wages. The express power to demote included the
implied power to pay lower wages.
