Hilco Capital Ltd v Harrington [2022] EAT 156

Appeal against a finding that the successful Claimant in an unfair dismissal case did not have a duty to mitigate her loss. Appeal allowed.

Following a liability hearing, the Claimant was successful in certain of her claims, including that she had been unfairly dismissed for the reason, or principal reason, that she had made a protected disclosure. There was subsequently a remedy hearing leading to an award. The Respondent appealed against that award. The Claimant defended the appeal and there was also a cross-appeal in relation to one aspect. The Claimant was awarded 85 weeks of lost earnings, the ET saying that she had not acted unreasonably by not applying for other positions up until the date when the liability decision was promulgated in February 2019. The Claimant asserted that, if she had applied for a job or jobs, she would then have been stigmatised and rejected for being a whistle-blower, which fact the Claimant asserted would have come out in the process, even though, to her own understanding, it was not, prior to the ET’s liability decision, in the public domain. The Respondent appealed.

The EAT allowed the appeal. The ET did err by finding that it was not unreasonable for the Claimant to have looked or applied for any job at all in the period from the date of dismissal up until the date when the liability decision was promulgated, when there was no evidence put forward specifically to support her assertion that, if she applied for any job, the fact that she claimed to be a whistle-blower would come out and she would then be unsuccessful. There were no findings of fact in the decision to support that conclusion. Whether that was viewed as error of law, perversity or lack of Meek v City of Birmingham District Council [1987] IRLR 250 compliance, there needed to be something more than the ET’s description of the assertion by the Claimant, and its acceptance that it provided a good reason for having applied for no jobs at all.


Published: 05/12/2022 16:06

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