The employer was found to have acted in breach of the implied duty of mutual trust and confidence in the way it had conducted discussions about a management restructuring. The employee resigned in response. His grievance was upheld and he was offered his old role back, but rejected the proposal because he had lost trust and confidence in the employment relationship. The tribunal found that this was a failure to mitigate his loss, and refused to award compensation for unfair dismissal.
The EAT upheld his appeal. The tribunal had applied the wrong test. The employee did not have to show that he had acted reasonably in refusing the offer of re-employment; it was for the employer to show that he had acted unreasonably. That was a different test. In a case of this type, it may be reasonable for an employee to accept an offer of re-employment. It might also be reasonable to refuse to go back to the employment. The employee will only be acting unreasonably if on the facts the only reasonable course of action would be to accept the offer. Whether the employee had acted unreasonably here was for a fresh tribunal to decide.