Tuesday 9 July 2002

New EAT Decisions

Kyndall Spirits v Burns (EAT 27/6/02, Lord Johnston)
There is a duty on an employer to expressly raise the issue of mitigation of loss, if it wants to rely on it. The decision in Morganite Electrical Carbon Ltd v Donne [1987] IRLR 363, which states that a tribunal must consider mitigation whether raised by the employer or not, is wrong.
- http://www.employmentappeals.gov.uk/uploads/EAT29022762002/index.htm

Skelton v Christian Salvesen (EAT 27/6/02, Lord Johnston)
The representative from the employer, who was providing instructions to the solicitor conducting the case, sat as a lay member on employment tribunals. He was (it seems) known to the panel of three who heard the case at first instance and found in favour of the employer. The employee appealed on the grounds of bias. The EAT dismissed the appeal, on the basis that:
a. a distinction must be drawn between professional and social acquaintances; with the former, there is no presumption of bias; and,
b. in any event, public policy prevents that argument succeeding because otherwise lay members of tribunals would never be able to appear in cases, whether as a representative or to give evidence.
- http://www.employmentappeals.gov.uk/uploads/EAT151022762002/index.htm

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