MS J BENJAMIN v THE MARKFIELD PROJECT

The Employment Appeal Tribunal considered an appeal against an Employment Tribunal's refusal to reconsider its remedy judgment in a claim upheld for constructive unfair dismissal and discrimination. The key legal principles were the limited scope of the Employment Tribunal's power of reconsideration under the ET Rules and the established law on mitigation of loss in unfair dismissal claims (including re‑training), and the requirement that a reconsideration decision must address issues raised in the application.

The EAT held that the ET permissibly treated the claimant's mitigation material as fresh evidence and was entitled to conclude it would not have had an important influence on the original remedy decision. The EAT further held, however, that the ET erred in failing to address the claimant's application seeking reconsideration of the injury to feelings award where the claimant had raised disability‑related difficulties in giving evidence and fairness of the remedy hearing. The EAT allowed the appeal in part (remitting the injury to feelings reconsideration) and dismissed the cross‑appeal.

Background and parties: The claimant (formerly employed as a part‑time support worker) resigned in June 2016 and successfully pursued claims for constructive unfair dismissal and discrimination at first instance; the remedy hearing took place on 16 January 2019 and a remedy judgment was sent on 8 March 2019. The claimant applied for reconsideration of the remedy judgment on 22 March 2019, submitting additional documentary material about mitigation and alleging that her disability had affected her ability to give evidence on injury to feelings. Employment Judge Bedeau refused the reconsideration on 14 August 2019. The claimant appealed that refusal to the EAT; the respondent was permitted to cross‑appeal.

Nature of the application/relief sought: The claimant sought reconsideration of the ET's remedy decision in relation to (a) mitigation of losses (including the reasonableness of undertaking a PGCE as retraining) and (b) the award for injury to feelings, arguing disability‑related difficulty in giving evidence. The respondent cross‑appealed arguing (i) a purported inconsistency in new documentary evidence and (ii) that the injury to feelings award was perverse.

Issues before the EAT:

• Whether the ET erred in its approach to mitigation and re‑training and/or treated the burden of proof incorrectly;
• Whether the ET failed to address the claimant's application for reconsideration in relation to injury to feelings, raising a procedural unfairness or fresh evidence point;
• Whether the respondent could properly raise the cross‑appeal points on the reconsideration judgment.

Reasoning and outcome: The EAT reviewed the legal framework for reconsideration (rules 70 and 72 ET Rules and the overriding objective) and authorities on review/reconsideration and on mitigation in unfair dismissal cases. On mitigation, the EAT found the claimant had not identified an error of law in the ET’s reconsideration judgment and had not asked the ET to reconsider on the specific legal bases later advanced on appeal; the ET was entitled to treat the additional documents as fresh evidence and to conclude they would not have changed the result. On injury to feelings, the EAT held the ET had failed to engage with a distinct point raised in the reconsideration application (that the claimant’s disability affected her ability to give evidence and therefore the fairness of the remedy hearing) and this omission was an error of law. The EAT therefore allowed the appeal in part, remitted the injury to feelings aspect of the reconsideration application to the ET for consideration, and dismissed the respondent’s cross‑appeal.

Appeal allowed in part and cross‑appeal dismissed. The EAT dismissed the claimant's challenge to the ET's conclusions on mitigation and re‑training (finding no error in the ET's treatment of the additional mitigation documents as fresh evidence), but allowed the claimant's second ground: the ET erred in failing to address the claimant's application to reconsider the injury to feelings award (where disability‑related difficulties in giving evidence and fairness of the hearing were raised). That aspect is remitted to the Employment Tribunal for fresh consideration. The respondent's cross‑appeal was dismissed as not properly raised on the reconsideration judgment and lacking substance.

The claim was heard and upheld on liability by an Employment Tribunal (EJ Bedeau with two lay members) following a merits hearing on 15–17 October 2018. A remedy judgment was issued on 8 March 2019. The claimant applied for reconsideration on 22 March 2019; Employment Judge Bedeau refused reconsideration on 14 August 2019. The claimant appealed that refusal to the Employment Appeal Tribunal, which delivered this judgment ([2022] EAT 167) on 17 November 2022, allowing the appeal in part and dismissing the respondent's cross‑appeal.