Appeal No. EAT/355/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 26 July 2001

Before
HIS HONOUR JUDGE PETER CLARK
MR D A C LAMBERT
MRS R A VICKERS

MR B COWLAND AND MR W STEANS
 t/a DRAIN CONTROL	APPELLANTS

MR H J TOOGOOD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	MR HENSON
(of Counsel)
Instructed by:
Professional Personnel Consultants Ltd
Enterprise House
Great North Road
Little Paxton
Cambridgeshire PE19 6BP	

JUDGE PETER CLARK

1	By a Decision with Extended Reasons promulgated on 31 January 2001 an Employment Tribunal sitting at Ashford (under the chairmanship of Mr Michael Zuke) upheld the Applicant, Mr Toogood’s complaint of unfair dismissal against his former employers, the Respondents, Messrs Cowland and Steans, trading as Drain Control.  The Tribunal then went on to assess compensation totalling £10,272.01, including a basic award of £350.  There is no appeal against the finding of unfair dismissal but the Respondents below appeal against the compensatory award solely insofar as the Tribunal dealt with the issue of mitigation of loss under Section 123(4) of the Employment Rights Act 1996, which applies the ordinary common law rule.  

2	The essential facts as found by the Tribunal were that the Applicant commenced employment with the Respondents as a drainage engineer on 24 November 1998 and remained so employed until his summary dismissal on 23 March 2000.  Prior to dismissal his average net earnings with the Respondents were £323.17 per week.  

3	Immediately following his dismissal he spent about one month, either on holiday or doing work for his daughter.  Thereafter, for a period of seventeen weeks between April and July 2000 he carried out drainage work for a Mr Shepherd earning a total of £1000.  

4	He then sought work as a drainage engineer, making three or four unsuccessful job applications, before securing a new job on 11 October 2000 with Flow Control Systems Ltd, a recently established business, at a salary of £15,600 per annum gross with the prospect of additional commission earnings.  He remained in that employment as at the date of the Tribunal hearing on 11 January 2001.  

5	As a matter of law, as Mr Henson correctly accepts, the burden lies on the party asserting a failure to mitigate, here the Respondent, to establish that failure.  See Bessenden Properties Ltd v Corness [1974] IRLR 338 (CA); Fyfe v Scientific Furnishings Ltd [1989] ICR 648 (EAT Mr Justice Wood presiding); Scottish & Newcastle Breweries PLC v Halliday  (Mr Justice Kilner-Brown presiding), not followed.  

6	As Lord Justice Roskill observed in Bessenden, questions of mitigation are questions of fact.  
“It is the duty of an employee who has been dismissed to act reasonably and to act as a reasonable man would do if he had no hope of seeking compensation from his previous employer.”

Archbold Freightage Ltd v Wilson [1974] IRLR 10 (National Industrial Relations Court, Sir John Donaldson, President).  

7	Before the Employment Tribunal it was argued on behalf of the Respondents that the Applicant had failed to mitigate his loss following dismissal:
(a) in failing to look for work during the first month of employment;
(b) by taking part-time work with Mr Shepherd over the seventeen week period between April - July, and
(c) in failing to take reasonable steps to obtain alternative employment between July and 11 October 2000, when he found full time employment with Flow Control Systems Ltd.  

8	The Tribunal, at paragraph 28 of their reasons, upheld that submission in part only, that is in respect of period (a); they were not satisfied that the Respondent had made out a failure to mitigate in respect of periods (b) and (c).  

9	It is against that conclusion that Mr Henson’s submissions in this appeal are primarily directed.  In a detailed Skeleton Argument he has made a number of what we would categorise as jury points, for example the Applicant did not register as unemployed and visit the Job Centre with a view to finding alternative employment;  he made only three or four applications for jobs between July and October when he obtained employment with Flow Control, and additionally, it is said that the evidence as to his earnings, at a time when he was working only part-time for Mr Shepherd, was flimsy.  

10	We categorise these points as jury points because they are precisely that.  It is for the Tribunal of fact to determine, properly applying the principles of law to the question of mitigation of loss, whether or not they are satisfied that there has been a failure on the part of the employee to mitigate.  They were so satisfied in relation to the first month of unemployment following dismissal; they were not so satisfied in relation to the two subsequent periods.  

11	We are quite satisfied that the Tribunal took into account the arguments properly advanced on behalf of the Respondents below, but their judgment was that a failure to mitigate had not been made out in respect of the two latter periods.  

12	Our jurisdiction is limited to correcting errors of law only.  We cannot discern any arguable point of law raised in this appeal, and consequently, it must be dismissed.