Jason Braier Profile picture
Mar 17, 2023 15 tweets 6 min read Read on X
🧵Edward v Tavistock & Portman: EAT clarifies the approach to reductions for failure to mitigate loss, in upholding an appeal against ET 50% reduction in compensation for failure to mitigate. The judgment deals with both burden & whether a % reduction can apply.
#ukemplaw
2/ C worked for the NHS as a band 5 data officer. He was downgraded to band 4 & dismissed on grounds of there being no band 4 vacancies. An ET found the failure to redeploy was victimisation for having made allegations of discrimination. The matter then went to a remedy hearing.
3/ C was out of work for 2.5 years before getting an 8 month fixed term contract. For the 2.5 year period, the ET found that C didn't apply for Band 4 roles, there came a point when he should have, & reduced compensation of past loss by 50% to reflect the chance of getting one.
4/ The EAT allowed an appeal against the ET's approach. Its treatment of mitigation of loss is instructive.

1st it noted there's no difference between the principles on mitigation in unfair dismissal cases as against EqA cases. Thus Cooper Contracting v Lindsay is applicable.
5/ The EAT noted that the usual approach to future loss of earning, as per Wardle, is to determine when an employee mitigating was likely to get another job on equivalent terms & to calculate loss to that date rather than to apply a % reduction.
6/ Gardiner-Hill takes the same approach to past loss of earnings, requiring findings of what steps should have been taken & when it would have produced an alternative income & to then apply that in calculation of loss rather than a % reduction approach.
7/ The EAT looked at the earlier authorities inferentially referred to in Gardener-Hill as well as those applying it, including approval in AON Training v Dore, noting limits to how directly they engage with the question of whether a % reduction is a wrong approach.
8/ The EAT turned to Hakim v Scottish TUC, which dealt with the appropriateness of a % approach & left open, in obiter, that it may be appropriate in some cases as a crude means of determining loss. Gavin Mansfield noted that this was not explored in detail by Lord Summers.
9/ The EAT in Edward endorsed from Hakim that there's no need to give a false appearance of precision when fixing the suitable point in time for calculation purposes - it's an evaluative exercise evaluating a counterfactual.
10/ The EAT considered the loss of chance cases, noting their regular application by the courts to counterfactuals in other areas of the law. The EAT disagreed with C's submission that BCCI v Ali (No.2) showed that loss of chance couldn't apply to past loss in employment.
11/ However, whilst clearly unhappy about it, the EAT found Gardiner-Hill binding against loss of chance %, whilst noting its inconsistency with the rife use of % in other areas of ET remedy, such as Polkey & Chagger.

He's clearly setting this point up for a further appeal.
12/ The EAT gave helpful guidance: apply the Cooper Contracting guidance on burden. If the R satisfies that test, ask the Gardiner-Hill questions (if relevant) on counterfactuals applying a balance of probability standard. There's no need to identify a specific job.
13/ The ET in this case didn't apply the correct approach. It couldn't be extrapolated from the 50% reduction that it had done so.
14/ Thus the ET in the present case had erred both in failing to apply the burden correctly as per Cooper Contracting and also in applying a % reduction rather than following the Gardiner-Hill approach to past loss.

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More from @JasonBraier

Apr 17
🧵SSBT v Mercer: Supreme Court issues declaration of incompatibility re the lack of protection from sanction short of dismissal for workers taking part in strike action. The current position breaches Art 11 ECHR.

#ukemplawsupremecourt.uk/cases/docs/uks…
2/ M was a support worker in the care sector & a UNISON workplace rep, who planned & participated in a lawful strike at her workplace. She was suspended, receiving normal pay but no overtime. Suspension removed her from the workplace during the period of industrial action.
3/ M was also given a first written warning, though that was overturned on appeal.

M brought an ET claim reliant on s.146 TULR(C)A, which provides protection against detriments for taking part in trade union activities. The statutory provisions are below: Image
Read 26 tweets
Apr 16
🧵 R (TTT) v Michaela Community Schools Trust - High Ct finds it was neither a breach of Art 9 nor indirectly discriminatory for the school to prohibit prayer rituals in response to Muslim pupils seeking to pray during their lunch break.

#ukemplawjudiciary.uk/wp-content/upl…
2/ The facts of this case will be familiar. Michaela is the school run by Katherine Birbalsingh, which has superb results but some incredibly strict rules & practices, including restricting discussion topics & limiting break time socialisation to groups of 4.
Image
Image
3/ The school, which is 50% Muslim, places considerable stock not only in its disciplinary regime, but also in what it calls its Team Ethos by which it seeks 'aggressively' to promote integration and to disrupt separation. Image
Read 25 tweets
Feb 26
🧵Mathur v HMRC: UT (Tax & Chancery) decides to broadly construe s.401 ITEPA so that a settlement including for claims re dismissal but also re unrelated pre-termination discrim is taxable where the trigger for bringing the claim is dismissal.

#ukemplawbailii.org/uk/cases/UKUT/…
2/ M worked for Deutsche Bank. Her employment was ended when the bank entered settlement with the New York State Dept of Financial Services re manipulation of interbank offered rates. DFS ordered the bank to terminate 7 employees, including M, said to be complicit in misconduct.
3/ She was offered c.£80k in a draft settlement agreement for that termination but declined to accept. Instead she brought ET proceedings for an equal pay claim, harassment, direct sex discrim, victimisation, s.47B & s.103A claims & ordinary unfair dismissal.
Read 18 tweets
Nov 29, 2023
🧵The Supreme Court's judgment in Tui Ltd v Griffiths is one of those rare non-employment law cases that all employment lawyers (& all other civil practitioners) really must read.
It's about whether you can impugn a witness without putting the point in XX.
supremecourt.uk/cases/docs/uks…
2/ The case concerned the court's treatment of an expert report prayed in aid of a claim by Mr Griffiths for the serious stomach upset & longer term stomach problems he suffered following an all-inclusive Tui package holiday at a Turkish resort.
3/ Mr G relied on an expert report from a microbiologist, Prof P. Tui didn't rely on any expert report (they sought unsuccessfully to apply to rely on one at too late a stage) & called no witnesses to give evidence. They didn't require Prof P to attend court to be cross-examined.
Read 11 tweets
Jul 26, 2023
🧵Garcha-Singh v BA: It wasn't unfair for BA to repeatedly extend the termination date in a medical incapacity dismissal - it was to G's advantage. There was also no need to provide an appeal against the final refusal to extend that date.

#ukemplawassets.publishing.service.gov.uk/media/64c0d977…
2/ G worked as long haul cabin crew. He was off for a year, 1st for physical health reasons & then stress reasons, at which point his employment was terminated with a little more than 4 months' notice.
3/ During the notice period. G returned to work, performing some duties albeit not his contractual role. BA decided to extend his notice period to allow him to demonstrate an ability to sustain a full flying roster, implying that if he did so the termination might not go ahead.
Read 16 tweets
Jul 19, 2023
🧵Jackson v Uni Hospitals of North Midlands: EAT holds ET erred in law in finding a Hogg v Dover dismissal wasn't a Hogg v Dover dismissal. The EAT clarified that there's no special repudiatory breach threshold for a Hogg v Dover dismissal.

#ukemplawrb.gy/rttwp
2/ J was a specialist research nurse, entitled to 4 weeks' notice of termination. In a restructure, she was placed in a lower grade research practitioner role, against her will (she'd refused to sign T&Cs). Those deciding on this hadn't appreciated this was a redundancy situation
3/ Because of that, J hadn't been offered a trial period in the new role, nor redundancy on enhanced contractual terms, which is what she sought. The contractual terms provided for a loss of enhancement if a person left their job prior to expiry of notice.
Read 17 tweets

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