This weeks case roundup
Mitigation of loss crucial
Marenghi v Western Baths Club, IRLB 677, EAT
Marenghi had worked as a part-time barmaid for 20 years. In a letter of 24
February 2000, Western informed her that to increase revenue, commencing 6
March, her current job would end but offered her a new role as bar/food person.
Marenghi intimated she would not accept and in a subsequent letter Western
notified Marenghi her employment would end on 5 March and on that day she was
paid one week’s notice.
She unsuccessfully claimed unfair dismissal, breach of contract and failure
to provide written reasons for dismissal.
Although Western initially stated Marenghi was redundant and later that she
left voluntarily, the tribunal accepted Western’s alternative reason that the
dismissal was for "some other substantial reason (SOSR)", namely
Marenghi’s unreasonable refusal of the new role.
Significantly, although she was entitled to 12 weeks’ statutory notice, the
tribunal held Marenghi had failed to mitigate her loss when refusing the new
role, especially as it would have commenced immediately.
Marenghi appealed and argued that the tribunal erred in considering only the
SOSR alternative. But the EAT held that although the reason for dismissal was
incorrectly labelled at the time of dismissal, the factual basis for the
dismissal was clear.
This flexibility did not apply to the written reasons however, and as these
were incorrect it awarded Marenghi the maximum of two weeks’ pay.
Dismissal for asserting statutory right automatically unfair
Silva & anr v Albion Hotel (Freshwater), unreported, November 2001,
Silva was contractually entitled to a bonus and when this was not paid he
complained to Albion. In March 1999, he was dismissed for poor management and
received no bonus.
As Silva did not have one year’s service, he could not claim unfair
dismissal. Instead, he claimed his dismissal was automatically unfair because
the principal reason for it was his allegation that Albion had infringed a
statutory right, namely his right not to suffer unlawful deductions from
"wages", which included non-payment of the bonus.
This claim was not subject to a qualifying period and provided Silva acted
in good faith when making it (which was a question of fact) it was immaterial
whether Silva actually had that statutory right or indeed whether Albion had
The tribunal held Silva had brought the claim in good faith and he was
entitled to the bonus. His dismissal was automatically unfair.
The EAT upheld this part of the tribunal decision. It allowed the other
ground of Albion’s appeal, however, and held the tribunal’s failure to invite
the parties’ submissions on the case authorities on which it relied had caused
significant procedural unfairness.