After successful proceedings at the ET, the Claimant, represented by solicitor and counsel, in her schedule of loss set off the sums she had received and would receive by way of ill-health early retirement pension against what she would have earned had she continued in employment. The ET further set off against her loss of earnings sums that she had earned in alternative employment, by way of mitigation of loss, and further found that she would in future fully mitigate her remaining losses by way of such alternative employment. The Claimant appealed on the ground that the ET should have applied the principle in Parry v Cleaver [1970] AC 1 and awarded compensation for loss ignoring the sums she had received by way of ill health retirement pension on the basis that these were insurance-type payments (even though her own schedule of loss had offset these amounts). Alternatively, the Claimant maintained that the ET had wrongly set off the sums she had received from alternative employment by way of mitigation of loss. The Claimant argued that either Parry v Cleaver applied and there was a duty to mitigate loss, or *Parry v Cleaver* did not apply and there was not a duty to mitigate loss.

The EAT dismissed the appeal. Whether Parry v Cleaver applied or not, there was a duty to mitigate loss by taking reasonable steps in mitigation so that the ET was plainly right to set off sums earned from alternative employment. The only two exceptions to that were: (i) payments made gratuitously to the claimant by others as a mark of sympathy ('the benevolence exception'); and (ii) insurance monies ('the insurance exception'), the latter being dealt with in the Parry v Cleaver case. The ET had erred in law by not applying the Parry v Cleaver principle and thus setting off the sums the Claimant received by way of ill-health retirement pension against her loss of earnings consequent on the termination of her employment. However, that was the basis on which the Claimant had advanced her claim below and it was not in the interests of justice to allow this new point to be run on appeal.