Kelly v. University of Southampton

An employee must take reasonable steps to mitigate loss caused by dismissal, but the standard expected is not demanding because the employer is the wrongdoer. The employer bears the burden of proving a failure to mitigate. A tribunal may find, on the totality of the evidence, that an employee would probably have obtained alternative employment even without direct evidence from the prospective appointing panel. Such a finding is not perverse merely because the employee did not apply and the tribunal used robust language, provided the inference was reasonably open on the facts.

Dr Kelly’s dismissal by the University of Southampton had previously been held wrongful and unfair. The case was remitted to a differently constituted Employment Tribunal to determine compensation. The Tribunal found that she had failed to mitigate her loss by not applying for two suitable vacancies at the university and limited her loss-of-earnings award accordingly. It also made alternative findings concerning vacancies at other universities. Dr Kelly appealed, principally arguing that there was no evidence that she would have been appointed to the university vacancies and that the finding was perverse.

1. Appeal dismissed. The Tribunal correctly approached mitigation. An employee cannot recover loss which reasonable steps could have avoided, but the expected standard of reasonableness is not high because the employer was the wrongdoer. The burden lay on the university to establish failure to mitigate, consistently with Fyfe v Scientific Furnishings Ltd [1989] IRLR 331.
2. The Tribunal was entitled to find that Dr Kelly should have applied for the two advertised posts. She was qualified, wanted the posts, had been told to apply through the ordinary recruitment process, and could not reasonably insist on reinstatement or appointment without open competition.
3. The Tribunal was also entitled to infer that she would have been appointed, or was extremely likely to have been appointed, despite the absence of direct evidence from the selection panel. The relevant assessment could be based on the history of her employment, the circumstances of her dismissal, her qualifications and suitability, and her previous experience at the university. The lack of direct evidence did not make the conclusion perverse.
4. An argument based on the possibility that disciplinary concerns might have affected the selection decision had not been advanced before the Tribunal and could not be raised for the first time on appeal. Nor was there any basis for treating the recruitment process as exceptional.
5. The second ground, concerning vacancies elsewhere, became academic in light of the conclusion on the first ground. The alternative findings remained available for consideration if the decision were successfully appealed further.

• Employment Appeal Tribunal: dismissed Dr Kelly’s appeal against the Employment Tribunal’s findings on mitigation of loss.
• Employment Tribunal: after remission following the earlier decision that the dismissal was wrongful and unfair, limited compensation for loss of earnings because Dr Kelly had failed to apply for suitable alternative employment.