Mr J Edward v Tavistock and Portman NHS Trust
| Jurisdiction | UK Non-devolved |
| Judge | Gavin Mansfield (Deputy Judge |
| Subject Matter | Not landmark |
| Court | Employment Appeal Tribunal |
| Published date | 17 March 2023 |
Judgment approved by the court for handing down Edward v Tavistock and Portman NHS Trust
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Neutral Citation Number: [2023] EAT 33
Case No: EA-2021-000791-AT
EMPLOYMENT APPEAL TRIBUNAL
Rolls Building
Fetter Lane, London, EC4A 1NL
Date: 17 March 2023
Before :
GAVIN MANSFIELD KC (DEPUTY JUDGE OF THE HIGH COURT)
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Between :
MR J EDWARD Appellant
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TAVISTOCK AND PORTMAN NHS FOUNDATION TRUST Respondent
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Christopher Milsom (Advocate) for the Appellant
William Young (instructed by DAC Beachcroft LLP) for the Respondent
Hearing date: 8 December 2022
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JUDGMENT
Judgment approved by the court for handing down Edward v Tavistock and Portman NHS Trust
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SUMMARY
RACE DISCRIMINATION
The Claimant was employed by the Respondent as a NHS band 5 data officer. The Respondent
downgraded him to band 4 and dismissed him, ostensibly on grounds that it had no band 4 vacancies.
The tribunal found that in failing to redeploy the Claimant to a band 4 role the Respondent victimised
him for having made allegations of discrimination. The Claimant was out of work for over two and a
half years. By the time of the remedy hearing the Claimant had been in a new job, paying a higher
salary, for three months. It was a fixed term contract running for five more months. During his period
of unemployment the Claimant had not applied for band 4 roles in the NHS. The tribunal found that
by a certain time during his period of unemployment he should have started to apply for band 4 roles.
It reduced his loss of earnings for the remainder of the period of past loss by 50% to reflect the
prospect that he would have obtained work if he had applied for band 4 roles. The tribunal found that
the Claimant would be able to find band 4 roles in future, and awarded six weeks loss of earnings, to
reflect the prospect that he may not find a new role immediately after the end of his fixed term
contract.
HELD
Failure to mitigate.
(1) The tribunal gave itself no directions as to the applicable legal principles, and it was not clear
from its reasons that it had applied the correct test. It was not clear whether (i) it had placed
the burden of proof on the Respondent to prove failure to mitigate; (ii) it had asked itself
whether the Claimant had acted unreasonably in failing to take steps to mitigate. The appeal
would be allowed on this ground. It could not be said that no tribunal properly directing itself
could have made a finding of failure to mitigate, so the case would be remitted for rehearing
on the question of mitigation.
(2) In the circumstances of this case, the tribunal had erred in applying a 50% discount to loss of
Judgment approved by the court for handing down Edward v Tavistock and Portman NHS Trust
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earnings over the relevant period. It should have made a finding as to when the Claimant
would, acting reasonably, have found new employment and at what rate. Gardiner-Hill v
Roland Berger Technics Ltd. [1982] IRLR 498 followed. There may be cases where further
consideration may need to be given to a “percentage discount” approach in the light of the
“loss of a chance” principles deriving from Allied Maples v Simmons & Simmons [1995] 1
WLR 1602. However, this was not an appropriate case to depart from the EAT’s established
approach in Gardiner-Hill. Observations about the nature of assessment of the evidence
where failure to mitigate is alleged.
Future Loss of Earnings
(3) The tribunal’s assessment of future loss of earnings was adequately reasoned and was not
perverse. The appeal on this ground was dismissed.
Injury to feelings
(4) The tribunal had assessed the chance of the Claimant being dismissed even if he had been
redeployed by the Respondent as 40%. It erred in applying the 40% discount to the injury to
feelings award. The appeal on this ground was allowed by consent.
Calculation errors in relation to pension loss and loss of earnings
(5) By consent, appeals and cross-appeals were allowed against errors in aspects of the tribunal’s
method of calculation.
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