The EAT held that whether her refusal to accept the offer made to her was an unreasonable failure to mitigate loss was a question of fact for the tribunal. The tribunal had correctly applied the test and considerations formulated by Potter LJ in Wilding v British Telecommunications plc [2002] ICR 1079 and its decision would not be disturbed. The tribunal's finding that there was no case for aggravated damages was also upheld.
RE-ENGAGEMENT AND ALTERNATIVE VACANCIES
20 October 2011 Does a finding that a dismissal was genuinely on grounds of redundancy remove the need to explain the remedies of reinstatement or re-engagement? No, SAYS the Employment Appeal Tribunal in the case of King v Royal Bank of Canada . Ms King was dismissed by reason of redundancy. The tribunal found that the dismissal was automatically unfair because there was a complete failure to follow the Statutory DDP (now repealed). However, the tribunal concluded that there was a real redundancy situation and as there was no suitable alternative job, the dismissal was not substantially unfair. With regard to remedy, the tribunal awarded compensation for financial loss but overlooked the issue of reinstatement or re-engagement. Ms King asked for reinstatement in her ET1 form and confirmed in her statement that she was seeking re-engagement. Ms King appealed the decision. She was not legally represented at the time and re- employment was not raised as an issue in her Notice of Appeal. The question of re- employment was only raised at a preliminary hearing by Counsel and permission to amend was granted. RBC applied to vary or discharge the proposed amended grounds. The EAT held that the tribunal's failure to deal with the remedies of reinstatement and re- engagement constituted a "striking omission" and concluded that it "was and is right to grant permission to amend" on the basis that any prejudice to Ms King would far outweigh any prejudice that RBC would suffer. The EAT also held that the tribunal wrongly restricted itself to considering only vacancies at the time of Ms King's dismissal as the situation with regard to possible vacancies may have changed between the date of dismissal and the period during which RBC ought to have followed a fair procedure. 2 November 2011 Does an employer's reasonable belief that a contract is illegal, and a fear that he would be exposed to penalties provide a defence to an employee's claim for non payment of wages based on that contract? No, says the EAT in Okuoimose v City Facilities . The question was whether the contract was illegal, not whether it was thought to be illegal. Daniel Barnett’s Employment Law Bulletin reports: The claimant was a member, by marriage, of the family of an EEA national. By virtue of the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) she was at all times entitled to reside and work in the UK. But a Home Office stamp in her passport confirming this expired. She was then suspended from pay for a period until a confirmatory letter from the UK Border Agency was available. The claimant made a claim for unlawful deductions from pay over the suspension period under s 13 of the Employment Rights Act 1996. The employment judge held the contract was illegal and unenforceable during that time. ILLEGAL AND IMMIGRATION RESTRICTIONS
CIPP Policy News Journal
09/10/2012, Page 54 of 234
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