Colin Smith v Nottingham City Transport
[2024] EAT 94
J Edward v Tavistock and Portman NHS Foundation Trust
17 March 2023
[2023] EAT 33
Employment Appeal Tribunal
A worker won a case for unfair dismissal but the judge made some mistakes in calculating how much money he should get. The higher court said the judge should redo part of the calculation but kept the rest of the decision. The worker will likely get more money.
Key Facts
- •Claimant (Mr. Edward) was a NHS band 5 data officer dismissed after being downgraded to band 4.
- •The Tribunal found the Respondent (Tavistock and Portman NHS Trust) victimised the Claimant by failing to redeploy him to a band 4 role.
- •Claimant was unemployed for over two and a half years before securing a higher-paying, fixed-term contract.
- •The Tribunal reduced the Claimant's loss of earnings due to a finding of failure to mitigate by not applying for band 4 NHS roles during unemployment.
- •The Claimant appealed aspects of the remedy decision, and the Respondent cross-appealed.
Legal Principles
Compensation for discrimination is assessed according to tortious principles, aiming to put the claimant in the position they would have been in without the unlawful act.
Equality Act 2010, Section 124(2)(b), Section 124(6), Section 119; Abbey National plc v Chagger [2010] ICR 397
In mitigation claims, the burden of proof is on the wrongdoer to show the claimant acted unreasonably in failing to mitigate loss.
Cooper Contracting Ltd. v Lindsay UKEAT/0184/15
In assessing future loss of earnings, tribunals must estimate the chances of a particular event occurring and reflect those chances in the damages awarded.
Ministry of Defence v Cannock [1994] ICR 918; Ministry of Defence v Hunt [1996] ICR 554; Mallett v McGonagle [1970] AC 166
It is inappropriate to reduce compensation for failure to mitigate by a percentage; instead, the tribunal must identify when the claimant would have reasonably found alternative employment and calculate loss accordingly.
Gardiner-Hill v Roland Berger Technics Ltd. [1982] IRLR 498
Employment Tribunal reasons must concisely identify the relevant law and state how it was applied.
Employment Tribunal Rules 2013, rule 62(5)
Outcomes
Appeal allowed on failure to mitigate.
The Tribunal failed to apply the correct legal test and provide adequate reasons for its decision. It did not clearly establish the burden of proof or the standard of reasonableness applied.
Appeal allowed on the 50% discount for failure to mitigate.
The Tribunal erred by applying a percentage discount instead of determining the date when the Claimant would have reasonably found alternative employment, following Gardiner-Hill.
Appeal dismissed on future loss of earnings.
The Tribunal's assessment was adequately reasoned and not perverse.
Appeal allowed by consent on the 40% reduction for injury to feelings.
Applying the 40% discount contravened O’Donoghue v Redcar and Cleveland Borough Council [2001] IRLR 615.
Cross-appeal allowed by consent on pension loss and future loss of earnings.
The Tribunal made calculation errors.
Case remitted for rehearing on mitigation.
The Tribunal's misdirection on the legal principles necessitates a rehearing on the mitigation issue.