CJ v PC

Compensation for discrimination under section 123 of the Equality Act 2010 is assessed on ordinary tortious principles. A claimant must take reasonable steps to mitigate loss, whether the loss is described as termination of employment, forced retirement, or diminution of retirement income. Earnings from alternative work which arise because of the termination must be credited, unless they would have been earned in any event.

An ill-health pension of the insurance type falls within the Parry v Cleaver exception and should not be deducted from lost earnings. However, an appellate court will not ordinarily permit that point to be raised for the first time where it was not advanced below, reopening it would require substantial further factual inquiry, and doing so would be unjust to the other party.

The claimant succeeded before the Employment Tribunal in claims for discrimination arising from disability and victimisation. The tribunal found that victimisation had caused her absence and the termination of her employment. It awarded financial loss, but deducted her Tier 1 ill-health retirement pension and earnings from additional freelance and events work.

On appeal, the claimant contended that the pension should have been disregarded under Parry v Cleaver, and that retirement relieved her of any duty to mitigate by working. The respondent accepted that the pension principle had not been applied, but contended that it was a new point which should not be entertained on appeal. The central issues were mitigation after ill-health retirement and whether the new pension point should be permitted.

1. Appeal dismissed. There is no legal distinction between compensation for so-called forced retirement and compensation for loss flowing from termination of employment. Both are assessed under section 123 of the Equality Act 2010 on tortious principles.

2. A claimant has a duty to take reasonable steps to mitigate loss. Retirement does not create a general exception. Whether it is reasonable to expect work after retirement is fact-sensitive. The Employment Tribunal was entitled to find that the claimant could earn, and would continue to earn, from alternative work permitted by the terms of her ill-health retirement. It had to credit earnings which arose from termination and which she would not otherwise have earned.

3. The tribunal had erred in deducting the ill-health pension from earnings loss. A contributory ill-health pension of the relevant type is an insurance payment under Parry v Cleaver and is not set off, even where the employer is also responsible for funding the pension. The ordinary rule against double recovery is subject to the benevolence and insurance exceptions.

4. Nevertheless, the claimant was refused permission to advance the Parry v Cleaver point for the first time on appeal. Her legally represented schedule of loss had adopted the contrary basis, and reopening the issue would require a substantially different remedy hearing, including further evidence and findings on past and future mitigation. The respondent had not caused the error. Finality, fairness to both parties, and the need to avoid a wholesale factual rehearing meant that it was not in the interests of justice to permit the new point. Grounds 1, 2 and 3 therefore failed.

• Employment Appeal Tribunal: Appeal from the Employment Tribunal’s remedy judgment dismissed.
• Employment Tribunal: The claimant succeeded in claims for discrimination arising from disability and victimisation, and was awarded compensation.