Ms J Botham v Criteria Internet Services Limited — 2023

The tribunal first held orally on 3 October 2023 that the period when Ms Botham was not employed by Criteria Internet Services Limited between 4 April 2022 and 13 May 2022 was a temporary cessation of work under s212(3)(b) ERA 1996. That meant she had the necessary two years’ continuous employment under s95 ERA 1996 to bring the unfair dismissal claim, and the constructive unfair dismissal claim was well-founded.

At remedy, the issue was mitigation of loss under s123(4) ERA 1996. The claimant had left after the dismissal, received Job Centre support, and moved into self-employment as a specialist exercise instructor working with older adults in care homes. The tribunal accepted that pursuing a change of career and initially exploring self-employment or non-office work was not inherently unreasonable, but found that it became unreasonable to rely solely on self-employment when it would not generate income for several months and then only a low income.

The tribunal accepted the respondent’s evidence that there were general administrative roles available and applied the mitigation authorities cited, including Archbold Freightage Ltd v Wilson, Gardiner-Hill v Roland Berger Technics Ltd, Yetton v Eastwoods Froy Ltd and Glasgow City Council v Rayton. It found that a reasonable employee would have explored non-office work for around six weeks to the end of September 2022, but by the end of November 2022 should have secured a comparable administrative role. Compensation was therefore limited to 14.96 weeks’ loss to 30 November 2022, calculated from a net weekly pay figure of £437.25 plus pension loss at £17.31 per week, giving a compensatory award of £6,800.22. The tribunal made no award for loss of statutory rights, expenses or future loss, and ordered a total award of £10,261.74, of which £6,541.26 was the prescribed element subject to recoupment.