Edward v Tavistock and Portman NHS Foundation Trust [2023] EAT 33

Appeal and cross-appeal against various aspects of the remedy judgment, especially in regard to failure to mitigate. Both appeal and cross-appeal allowed.

The Claimant was employed by the Respondent as a NHS band 5 data officer. The Respondent downgraded him to band 4 and dismissed him, ostensibly on grounds that it had no band 4 vacancies. The Claimant won his claims of discrimination and victimisation at the ET. The Claimant was out of work for over two and a half years. By the time of the remedy hearing the Claimant had been in a new job, paying a higher salary, for three months. It was a fixed term contract running for five more months. During his period of unemployment the Claimant had not applied for band 4 roles in the NHS. The tribunal found that by a certain time during his period of unemployment he should have started to apply for band 4 roles. It reduced his loss of earnings for the remainder of the period of past loss by 50% to reflect the prospect that he would have obtained work if he had applied for band 4 roles. The tribunal found that the Claimant would be able to find band 4 roles in future, and awarded six weeks loss of earnings, to reflect the prospect that he may not find a new role immediately after the end of his fixed term contract. The Claimant appealed against the reduction in his award for a failure to mitigate and the Respondent cross-appealed certain other aspects of the remedy judgment.

Both the appeal and cross-appeal were allowed. On the question of mitigation, the ET gave itself no directions as to the applicable legal principles, and it was not clear from its reasons that it had applied the correct test. It was not clear whether (i) it had placed the burden of proof on the Respondent to prove failure to mitigate; (ii) it had asked itself whether the Claimant had acted unreasonably in failing to take steps to mitigate. In the circumstances of this case, the ET had also erred in applying a 50% discount to loss of earnings over the relevant period. It should have made a finding as to when the Claimant would, acting reasonably, have found new employment and at what rate. Further, the ET had assessed the chance of the Claimant being dismissed even if he had been redeployed by the Respondent as 40%. It erred in applying the 40% discount to the injury to feelings award. The cross-appeal was allowed in respect of the calculation of pension loss and loss of earnings.


Published: 12/04/2023 12:42

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