1. Edward v Tavistock and Portman NHS Trust [2023] EAT 33
In this case, the Employment Appeal Tribunal (“EAT”) considered the correct approach to determining whether a claimant has failed to mitigate their loss and how compensation should be reduced for failure to mitigate.
The Claimant was an NHS Data Officer at band 5. He successfully claimed victimisation in the Employment Tribunal (“ET”) having been dismissed after making allegations of unlawful discrimination against the Respondent. The Respondent had first downgraded the Claimant to a band 4 role and then dismissed him on the grounds that there were no band 4 vacancies. He was unemployed for two and a half years following his dismissal and had not applied for any band 4 roles in the NHS, but by the time of the ET remedy hearing he had been employed for three months on a fixed term contract paying a higher salary.
The ET applied a 50% discount to a proportion of the Claimant’s loss of earnings on the basis that he had failed to mitigate his losses. The 50% reduction was said to reflect the prospect that he would have secured alternative employment if he had applied for band 4 roles which, the ET said, the Claimant “should have” done.
On appeal, the EAT was not satisfied that the ET had applied the correct test for determining the question of mitigation. It held that the ET’s reasoning had not set out any legal directions and it was not clear whether it had (as it should have) placed the burden of proof on the...
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