Sanha v Facilicom Cleaning Services Ltd UKEAT/0250/18/VP

Appeal against the ET’s assessment of the compensatory award payable to the Claimant for unfair dismissal. Appeal allowed.

The Claimant, who worked for the Respondent as a cleaner, was dismissed following the expiry of his residence permit, despite his status as an EEA family member. He successfully brought claims in the ET for unfair and wrongful dismissal. The ET made basic and compensatory awards, but it reduced the Claimant's compensatory award by 25% on the basis that his actions contributed to his dismissal, and it limited his loss of earnings to 6 weeks because he should have mitigated his losses by applying for night work with the Respondent. The Claimant appealed, contending that the ET had erred (1) in considering that a reduction to a basic award required a finding that the conduct of the complainant was blameworthy, but a reduction to a compensatory award did not require any such finding, and (2) in taking the wrong approach to the burden of proof on the issue of mitigating loss and in making findings of fact that were not supported by evidence.

The EAT held that the ET had erred in law in proceeding on the basis that a finding of blameworthiness was a prerequisite only of a reduction to a basic award, and not of a reduction to a compensatory award, and that it had not been open to the ET to find that, by not applying for night jobs, the Claimant had unreasonably failed to mitigate his loss. Accordingly, neither the 25% reduction nor the limitation for failure to mitigate could stand, but the matter would be remitted to the same ET in order to revisit its calculation of the compensatory award.

Published: 03/06/2020 22:48

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