Patricia Kirkland v Caroline Mason t/a Hawthorn Education Services

An employment tribunal assessing a preparation time order must determine a reasonable and proportionate number of hours and multiply that figure by the prescribed hourly rate. It may assess the hours broadly, but must base the award on an hours finding and give adequate reasons for that assessment.

In assessing mitigation of loss for an unfair dismissal compensatory award, the employer bears the burden of proving that the claimant acted unreasonably. The tribunal must assess reasonableness objectively on the totality of the evidence, including the claimant’s circumstances and state of mind.

The Claimant was employed as an administration manager by the Respondent, who provided specialist one-to-one education. The Employment Tribunal found that the Claimant had been unfairly dismissed. At a remedy hearing, it limited her claimed loss of earnings to six months after finding that she had not mitigated her loss, and made a preparation time order of £1,000.

The Claimant appealed the amount of the compensatory award and the preparation time order. She argued that the Tribunal had wrongly placed the burden of proving mitigation on her and had failed to calculate the preparation time order by assessing hours under the applicable rule. The central issues were whether the Tribunal used the correct mitigation test and whether it lawfully assessed and explained the amount of the preparation time order.

1. The appeal was allowed on both grounds. The compensatory award and preparation time order were set aside.

2. Rule 79 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 requires the Tribunal to decide how many hours of preparation time are reasonable and proportionate, taking account of the receiving party’s information and the Tribunal’s own assessment. It must then multiply those hours by the prescribed hourly rate. The Tribunal may assess hours on a broad-brush basis, but it cannot award an unexplained fixed sum without basing it on a number of hours. Even if the £1,000 award represented an inferred 23.26 hours, the reasons did not explain that assessment or engage with the hours claimed and the work said to be unnecessary. A solicitor-style itemisation was not required before the Tribunal could make a reasoned assessment. Wilding v British Telecommunications plc [2002] EWCA Civ 349 and Cooper Contracting Limited v Lindsey UKEAT/018415/JOJ were not relevant to this issue.

3. For mitigation of loss under section 123(4) of the Employment Rights Act 1996, the wrongdoer bears the burden of proving that the claimant acted unreasonably in failing to mitigate. The claimant need not prove that their conduct was reasonable. The tribunal must make an objective assessment on the totality of the evidence, including the claimant’s wishes and state of mind, without imposing too stringent a standard. The principles were drawn from Wilding v British Telecommunications plc [2002] EWCA Civ 349 and Cooper Contracting Limited v Lindsey UKEAT/018415/JOJ. The Tribunal’s finding that it was not satisfied that the Claimant had mitigated her loss did not itself establish that she had acted unreasonably. Nor could the Tribunal’s general reference to just and equitable compensation under section 123(1) replace the required mitigation assessment. Re B (Children) [2008] UKHL 35 concerned the resolution of doubt in a binary factual determination; this case concerned an evaluative assessment of reasonableness. The Tribunal had not applied the correct burden or made a positive finding of unreasonable conduct.

4. Applying the remittal principles in Sinclair Roche & Temperley v Heard [2004] IRLR 763, the EAT remitted the issues to a differently constituted Employment Tribunal. The compensatory award was remitted only on mitigation of loss, preserving the £500 award for loss of statutory rights. The amount of the preparation time order was remitted, while the finding that such an order was justified remained undisturbed. The 25 per cent ACAS Code uplift was also set aside for recalculation if the compensatory award changed.

1. Employment Appeal Tribunal: In [2026] EAT 108 , the appeal was allowed. The compensatory award and preparation time order were set aside and specified issues remitted to a differently constituted Employment Tribunal.
2. Employment Tribunal (Manchester), remedy: Remedy judgment dated 25 June 2024, with written reasons dated 30 September 2024. The Tribunal awarded six months’ loss of earnings and a £1,000 preparation time order.
3. Employment Tribunal (Manchester), liability: Liability judgment dated 15 May 2024. The Tribunal found that the Claimant had been unfairly dismissed.