N Moustache v Chelsea and Westminster NHS Foundation Trust
[2022] EAT 204
CJ v PC
22 October 2024
[2024] EAT 182
Employment Appeal Tribunal
A disabled employee won a discrimination case but argued the judge should have ignored her early retirement pension when calculating compensation. The appeals court said the judge made a mistake but it was too late to change it, as it would mean redoing the entire case. The court also said the employee had a duty to look for other work, regardless of her retirement.
Key Facts
- •CJ (Appellant) was employed by PC (Respondent), a local authority, as an HR advisor.
- •CJ was a disabled person under the Equality Act 2010.
- •CJ's employment terminated on 20 November 2020.
- •Employment Tribunal upheld claims for discrimination arising from disability and victimisation.
- •Tribunal awarded compensation, setting off CJ's ill-health retirement pension against loss of earnings.
- •CJ appealed, arguing the Tribunal should have applied the Parry v Cleaver principle (regarding insurance-type payments) and not set off the pension.
- •CJ also argued against the set-off of alternative employment earnings in mitigation of loss.
Legal Principles
Duty to mitigate loss by taking reasonable steps.
General tortious principles; British Westinghouse Electric and Manufacturing Company Ltd v Underground Electric Railways of London Ltd [1912] A.C. 673
Exceptions to the duty to mitigate: (i) gratuitous payments; (ii) insurance monies (Parry v. Cleaver).
Gaca v. Pirelli General Plc [2004] 3 AER 348
In claims for damages for lost earnings, pension benefits are not to be deducted if they are considered a form of insurance (Parry v Cleaver).
Parry v. Cleaver [1970] AC 1; Smoker v. London Fire and Civil Defence Authority [1991] 2 AC 502
Outcomes
Appeal dismissed.
The Tribunal correctly set off alternative employment earnings. While the Tribunal erred in not applying the Parry v Cleaver principle regarding the ill-health retirement pension, this was the basis on which CJ advanced her claim, and it wasn't in the interests of justice to allow this new point on appeal. There is a duty to mitigate losses, even in cases of 'forced retirement'.