Wilding v British Telecommunications plc

In assessing mitigation, the question is whether the claimant did act unreasonably in refusing re-employment, not merely whether acceptance would have been reasonable. The wrongdoer bears the burden of proving unreasonable refusal. The tribunal must apply an objective standard to the totality of the evidence, including the circumstances of the offer and refusal, the employer’s attitude and treatment, the surrounding history, and the claimant’s state of mind. The standard is not stringent. A mitigation finding is ordinarily factual, but may be challenged as an error of law where the tribunal applies the wrong test, considers irrelevant matters, omits relevant matters, draws a wrong inference, gives inappropriate weight, or reaches a perverse conclusion.

Mr Wilding, a disabled former senior manager of BT, had succeeded before the London (North) Employment Tribunal on disability discrimination and unfair dismissal. At the remedies stage, BT offered re-engagement on a 20-hour working week. The Tribunal held that he had unreasonably refused the offer and was therefore not entitled to certain damages. The Employment Appeal Tribunal dismissed his appeal. The Court of Appeal considered whether the Tribunal had applied the correct mitigation test, properly considered the history and Mr Wilding’s reasons, placed the burden on BT, and reached a conclusion open on the evidence.

1. Appeal dismissed. Potter LJ delivered the leading judgment, with Brooke LJ agreeing. Sedley LJ concurred in the result. The order was made with costs subject to detailed assessment if not agreed.
2. The claimant must take reasonable steps to mitigate loss, but the wrongdoer must prove that the claimant acted unreasonably in refusing the proposed step. It is insufficient to show merely that acceptance of re-employment would have been reasonable. The assessment is objective, but must consider the individual circumstances, including the offer and its refusal, the employer’s attitude, the claimant’s treatment, the surrounding history and the claimant’s state of mind. The standard of reasonableness is not high. These principles were supported by Fyfe v Scientific Furnishings [1989] ICR 648, Banco de Portugal v Waterlow and Sons Ltd [1932] AC 452, Ministry of Defence v Hunt [1996] ICR 554 and Payzu Limited v Saunders [1919] 2 KB 581.
3. Potter LJ explained the relevance of Emblem v Ingram Cactus Ltd CA (Unreported), 5 November 1997. Its emphasis on objective factors reflected the particular circumstances of that case, where the claimant had given no specific explanation for refusing the offer. It did not prevent a tribunal from scrutinising the claimant’s stated reasons and state of mind.
4. Although mitigation is ordinarily a question of fact, an appeal may lie where the tribunal failed to apply the correct legal test, considered irrelevant matters, left relevant matters out of account, drew an erroneous inference, gave wholly inappropriate weight to a factor, or reached a perverse conclusion. The Tribunal was entitled to examine the timing of the refusal, the change in Mr Wilding’s position, the history of the dispute and the genuineness of the offer. The correspondence and written offer were sufficient evidence; BT was not required to call separate oral evidence proving its good faith.
5. Sedley LJ stressed the distinction between showing that acceptance would have been reasonable and showing affirmatively that refusal was unreasonable. Although the Tribunal’s reasoning was poorly expressed in places, its conclusion was not shown to involve a misunderstanding or misapplication of the legal test.

1. Court of Appeal dismissed Mr Wilding’s appeal against the Employment Appeal Tribunal’s decision.
2. Employment Appeal Tribunal dismissed the appeal from the remedies decision of the London (North) Employment Tribunal on 9 April 2001.
3. London (North) Employment Tribunal found liability for disability discrimination and unfair dismissal on 21 January 1999, and later held that Mr Wilding had unreasonably refused BT’s offer of re-engagement in its remedies decision dated 10 June 1999.