Tribunal advice needed - complex question

[mariefab]

I think that my earlier suggestion that you use the 'mitigation of loss' argument at all was a mistake.

 

Here's why:

Remember that at no time before the ET3 did the Respondent suggest that they had committed a fundamental breach.

 

I believe that introducing 'mitigation of loss' may be spun as:

Agreeing that they fundamentally breached your contract by not paying you on 28th February.

So, you accepted the breach as repudiating the contract thus bringing it to an (early) end.

Thereafter, you took steps to mitigate your loss by starting a new job.

(When really you just started the new job early to keep money coming in while you waited for the delayed payment.)

 

You would only need to demonstrate that you made all reasonable attempts to mitigate your loss after the EDT.

 

 

However, I think that it may be possible to include an argument in the spirit of 203.

Perhaps something along the lines of:

At no time before the ET3 did the Respondents hint that they considered that they had committed a fundamental breach of contract.

Nor did the Claimant make such an allegation.

The inclusion of this in the ET3 was made in a cynical attempt to retrospectively construct a potential earlier EDT than 2nd April so as to make the claim out of time.

 

The Claimant, operating on the assumption that his notice period would expire on 2nd April (s.97(1)(a) ERA 1996), couldn't have been expected to anticipate that this argument would be raised in August(?).

[mariefab]

Why do you think that you're entitled to redundancy pay?

 

You were offered, accepted and started a new job before your statutory notice period.

So, surely you're not entitled to it.

[mariefab]

I don't see why.

Your notice period was your notice period no matter what the reason for dismissal.

You can be made redundant after one week of service.

The 2 years service is only relevant for entitlement to redundancy pay.

 

Ha! I was just looking at the Kirklees v Radecki case that the Respondent helpfully cited.

Check out para. 20, the bold section (not including the last sentence).

I think that assists the last sentence in my post #114.

[mariefab]

Bugger! I was looking at the EAT case,

http://www.bailii.org/uk/cases/UKEAT/2008/0114_08_0905.html

[mariefab]

Happily it's repeated in the Court of Appeal case cited by the Respondent at para. 37(4)

http://www.bailii.org/ew/cases/EWCA/Civ/2009/298.html

[mariefab]

No, it isn't that.

It's that the Respondent cited the Court of Appeal one.

They even referred to para. 37!

It's so obliging of them to offer up cases that help your claim, don't you think?

[mariefab]

I would expect that if someone is going to refer to a particular case they should bring a copy of it with them because the Judge can't be expected to hold the details of every previous case in his head.

 

The Respondents should take copies of the cases they specified, but to be on the safe side I'd print out the whole of para. 37 of Kirklees and highlight (4):

 

(4) We consider it a matter of the greatest importance that there should be no doubt or uncertainty as to the date which is the 'effective date of termination.' An employee's rights either to complain of unfair dismissal or to claim redundancy are dependent upon his taking proceedings within three months of the effective date of termination (or in the case of redundancy payments 'the relevant date'). These time limits are rigorously enforced. If the identification of the effective date of termination depends upon the legal subtleties of the law of repudiation and acceptance of repudiation, the ordinary employee will be unable to understand the position. The Dedman rule fixed the effective date of termination at what most employees would understand to be the date of termination, i.e. the date on which he ceases to attend his place of employment."

 

(don't worry about the Dedman rule because it's confirmed at the start of 37 that it's authority for the EDT being the date f a summary dismissal).

 

I'd print out paras. 54-62 in Horwood too, because it mostly refers to cases where the EDT was altered by agreement between the parties. You then get to make the rather obvious point that at no time did you and the Respondent agree to bring forward the EDT. After all they didn't know you had another job until you informed them at a chance met encounter a week after you started.

 

http://www.bailii.org/uk/cases/UKEAT/2012/0462_11_0304.html

[mariefab]

Good luck tomorrow, I'll have my fingers crossed for you!