Bloxwich Fencing Ltd v Banks - Re-raising at the EAT an argument withdrawn at tribunal [2010] EAT

(i) resignation following refusal to accept adverse changes in terms of employment is not necessarily failure to mitigate loss on a subsequent claim of constructive unfair dismissal;

(ii) the EAT cannot hear argument on a point of law withdrawn at the original tribunal hearing unless the withdrawal was subject to reservation of the right to argue the point before a higher court.

Mr Banks was laid off without pay on 3rd October 2009 by his then employer, Bloxwich Fencing Ltd, despite his contract of employment making no express provision for this.

Mr Banks claimed inter alia constructive unfair dismissal against Bloxwich. This was on the basis that relations had deteriorated and Bloxwich had sought, in bad faith, to use the economic downturn as a pretext for laying him off when really it wanted to get rid of him for other reasons.

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