Window Cleaners Triumph in TUPE Claim
Under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), dismissal of an employee for a reason connected with the transfer of a business is automatically unfair dismissal unless it can be shown to be for an economic, technical or organisational reason involving changes in the workforce.
The Employment Appeal Tribunal (EAT) has ruled that two window cleaners whose employment was transferred under TUPE were under no obligation to mitigate the losses they incurred as a result of their automatic unfair dismissal by accepting less generous terms of employment offered by their new employer (F&G Cleaners Ltd. v Saddington and Others).
The jobs of the two workers transferred from one company to another after their original employer lost a local authority window-cleaning contract. Their new employer had refused to accept that TUPE applied to them and declined to offer them employment on the same terms as before. The workers refused employment on lesser terms – on a self-employed basis, at a lower rate of daily pay and on a month’s trial. The Employment Tribunal (ET) found that they had been automatically unfairly dismissed and awarded them compensation made up of a basic award and an award for the loss of past and future earnings.
The new employer argued at the EAT that, in refusing to accept the offers of less generous terms, the workers had failed to take reasonable steps to mitigate their losses and their compensation awards should have been reduced accordingly.
However, dismissing the employer’s appeal, the EAT ruled that the offers of reduced terms were made prior to the termination of the workers’ employment contracts and that the duty to mitigate did not therefore arise.
Furthermore, the workers’ decision to decline the less favourable terms of employment offered was not unreasonable. The ET’s consideration of the issue was not confined to the workers’ loss of statutory rights but had taken into account the other differences between the terms to which they were contractually entitled by reason of the TUPE transfer and the new terms which had led to their rejection of the offers.