Edward v Tavistock and Portman NHS Foundation Trust – reinforcing the key principles of the mitigation of losses

This article will discuss the case of Edward v Tavistock and Portman NHS Foundation Trust and explain the issues it raised for the Employment Tribunal (ET) to decide upon.  The case focussed on whether the claimant had done everything he could to minimise his losses after his dismissal.

Edward v Tavistock and Portman NHS Foundation Trust: the case

In this case the claimant, Mr Edward, worked for the NHS as a band five data officer. During his employment he was downgraded to band four and then dismissed on the basis there were no band four vacancies.   He successfully claimed victimisation following allegations of discrimination.

The claimant was out of work for two and a half years. At the time of the remedy hearing he had been in a new job with a higher salary for three months in a fixed term role that was to run for a further five months.  During the period when he was unemployed Mr Edward failed to apply for any other band four roles. The Tribunal felt he should have been applying for band four roles after a certain amount of time unemployed as a result Mr Edward’s loss of earnings award was reduced by 50% as the ET stated that he had failed to mitigate his losses following his dismissal from the Trust.

On appeal the Employment Appeal Tribunal (EAT) held that it was not clear from the ET’s reasoning whether the correct test had been applied when making its determination. Specifically, it was not clear whether the ET required the Trust to prove that Mr Edward had failed to act reasonably to mitigate his losses, nor whether the ET had asked itself whether he had failed to take necessary steps to mitigate his losses.

The EAT held that the ET had erred in applying a 50% discount. Instead, following case law it should have made a finding as to when on the balance of probabilities, Mr Edward acting reasonably, would have found new employment and what rate this would have been at (this is the well-established approach in Gardiner-Hill v Roland Berger Technic Ltd. [1982] IRLR 498). There may be some cases where it could be possible to consider giving a percentage discount comparable to the loss of chance approach (Allied Maples v Simmons & Simmons [1995] 1 WLR 602) where there is insufficient evidence to make a finding on the balance of probabilities. This was not appropriate here. The ET should have followed the Gardiner-Hill approach and identified by when the claimant should have been able to obtain other employment.

As a result of the conclusions reached, the EAT held that the case would be sent back to the tribunal for rehearing on the issue of mitigation.

Comment

Overall, this case reinforces the key principles on the mitigation of losses and that ultimately a respondent is required to show a claimant has failed to mitigate their losses and take reasonable steps to minimise their losses.

Further guidance and support

Our healthcare team combine their experience in the healthcare sector with their individual expertise in their practice area and currently support a number of trusts with the resolution of related claims.

If you need advice on the issues covered in this article, please contact Catherine Daw or take advantage of our free 30-minute consultation with our employment law experts.

This content is correct at time of publication