EAT Unfair Dismissal : Mitigation of Loss – DISCRIMINATION: JURISDICTIONAL POINTS: Extension of time: just and equitable
In a case where the claimant had succeeded in a claim of constructive unfair dismissal, the Employment Tribunal erred in its approach to mitigation of loss. The judgment contained no acknowledgment of where the onus of proof lay. The exercise of examining a claimant’s actions against a requirement that it was for the respondent to prove that she acted unreasonably had not been carried out. In any event, the Tribunal’s conclusion that the claimant had effectively chosen not to work once pregnant again appeared to be based on suspicion or conjecture rather than on facts proved by the respondent. The Tribunal had not approached the matter in the way required by the principles enunciated in Wilding v British Telecommunications Plc [2002] ICR 1079 and Cooper Contracting Ltd v Lindsey UKEAT/0184/15.
The Tribunal had erred further in its approach to the claimant’s pregnancy related discrimination claim. On the facts found she had been passed over for promotion as a result of her pregnancy and maternity leave, there being good evidence that she was someone who would otherwise have been considered for the post. She had delayed in making claim under section 18 of the Equality Act 2010 during a period when the respondent had offered her an alternative post following her return to work. In considering whether it was just and equitable to extend time in relation to that claim, the Tribunal had failed to address the question of prejudice at all. Further, no account was taken that, in not allowing the claim to proceed out of time the claimant had lost not simply a speculative claim but an arguably good claim on its merits.
The appeal was allowed and both issues of mitigation of loss and the pregnancy discrimination claim referred to a freshly constituted tribunal for determination. A cross appeal in relation to quantum was dismissed.
Judges:
Lady Wise
Citations:
[2016] UKEAT 0016 – 14 – 0911
Links:
Jurisdiction:
Scotland
Employment, Discrimination
Updated: 29 January 2022; Ref: scu.573472
