Mr A Phillimore v Bernard Olesinski Limited — 2020

The tribunal found that the Claimant had been constructively unfairly dismissed. Liability had already been determined orally; the written reasons deal only with remedy. The claimant had updated his schedule of loss, and both sides agreed the basic award and several components of loss, including net pay, pension contributions, and an award for statutory rights.

On mitigation, the Claimant gave evidence that after resignation he set up Onform CAD Limited, a CAD/CGI business, because his previous work had been in a niche field, his contract contained year-long restrictive covenants, the Respondent would not agree a reference confirming his head of department role, and his commute range to new employment was limited. The tribunal accepted that it was reasonable for him to set up his own business and accepted his evidence that six months were needed to build a portfolio and marketing plan. It also accepted that a further six months was reasonable because of the restrictive covenants and the need to explore business opportunities.

The tribunal was not satisfied that the Claimant had proved all of the earnings figures he relied on. It treated £3,600 as the high point of mitigation earnings for 2019, described his evidence of later projects and job applications as sketchy and largely uncorroborated, and found that he should have begun considering alternative employment by late 2019 rather than waiting until January 2020. It found that his loss of earnings ceased at the end of December 2019.

The final award was £15,504.94. The remedy schedule recorded a basic award of £1,524 and a compensatory award of £13,980.94 after deduction of £3,600 said to have been earned in mitigation and a 50% reduction. The Respondent's counter-claim was dismissed upon withdrawal.