Saddington and other v F&G Cleaners Ltd UKEAT/0140/11/JOJ
The employees were transferred to F&G following a re-tendering process but F&G did not consider that TUPE applied, and therefore instead of continuing the employees' employment, offered to engage them as self-employed contractors, which they refused. The tribunal found they had been automatically unfairly dismissed and EAT dismissed the F&G's appeal.It found that the employees had not acted unreasonably and had not failed to mitigate their loss by accepting self-employed terms. The difference between their previous terms and those offered by F&G were crucial.As F&G had effected their dismissals at the point when they had declined the offers of self-employment and not at the date of transfer, they were employed by F&G. The employees had not acted unreasonably as no duty to mitigate had arisen until they had been dismissed.
Key point: The test is not whether it would have been reasonable for the employees to have accepted the changes but whether the employees had been unreasonable in rejecting them.
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