Tandem Bars Ltd v Pilloni

When assessing mitigation of loss, an employment tribunal must decide whether the employee took the steps that a reasonable employee would have taken to obtain alternative work. It is insufficient merely to find that the employee followed his usual method of finding work.

An employment tribunal which proposes to make an uplift under section 207A must ordinarily give the affected party an opportunity to make submissions. A maximum uplift imposed for the first time in the judgment, without that opportunity, is procedurally irregular unless the case is exceptionally clear.

The Employment Tribunal found that the employee had been unfairly dismissed and made awards including past and future loss of earnings. It found that he had mitigated his loss by searching for restaurant work in the manner in which he had previously found employment.

It also increased the total award by 25 per cent under Trade Union and Labour Relations (Consolidation) Act 1992, section 207A, although the issue had not been raised or argued at the hearing. The employer appealed against remedy only, challenging the mitigation finding and the uplift.

1. Appeal allowed. The Employment Tribunal erred in its approach to mitigation. Although it had correctly directed itself that mitigation concerned reasonable steps to obtain alternative employment, its findings concentrated on what the employee had actually done and on his past practice.

   The relevant inquiry was whether, in the circumstances, those were steps which it was reasonable for an employee to take. The Tribunal did not explain why steps ordinarily expected, such as written applications or using the Jobcentre to find vacancies, were reasonably not taken. The error was one of law and required reconsideration.

2. The 25 per cent uplift under section 207A was also procedurally irregular. The employer had received no opportunity to address whether an uplift was appropriate or, if so, whether the maximum uplift was just and equitable. Save in the clearest cases, a tribunal must alert the parties before deciding a point which neither has raised. This was not such a case.

3. The errors did not vitiate the entire decision or require a differently constituted tribunal. Mitigation remained a first-instance evaluative question and the Tribunal could reach a different conclusion when applying the correct test. The issues of mitigation and uplift were remitted to the same Tribunal, ordinarily on the existing evidence, subject to directions if practical difficulties arose.

• Employment Appeal Tribunal: Allowed the employer’s appeal against remedy and remitted mitigation and the uplift issue to the same Employment Tribunal.
• Employment Tribunal: Found the employee unfairly dismissed, awarded compensation, and applied a 25 per cent uplift under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992.