SBH Windermere Ltd & Anor v S Nunns

When compensation is reconsidered because payment of an award will affect a claimant’s Universal Credit, the tribunal must assess mitigation more widely and consider whether other benefits should have been sought. The assessment must reflect real loss. Whether a claimant should have claimed a particular benefit, and the reasons for not doing so, may depend on the evidence and can be left for the tribunal to decide. Post-judgment information may justify reconsideration as a legal argument; if it is treated as fresh evidence, the applicable fresh-evidence principles must still be satisfied.

After a liability hearing, the Employment Tribunal upheld harassment complaints brought by Mr Nunns against SBH Windermere Ltd and Mr A Wilson. Its remedy judgment of 5 April 2024 awarded £35,656. Following a post-judgment email explaining that payment of the award would take Mr Nunns above the Universal Credit savings cap, the Tribunal reconsidered the remedy and increased compensation to £43,044.

The appellants challenged both the decision to reconsider and the Tribunal’s reliance on the effect on Universal Credit without considering whether Mr Nunns could mitigate his loss by claiming other benefits. The central issue was whether the Tribunal could revise compensation for the Universal Credit consequences without considering wider mitigation.

The appeal succeeded on the mitigation issue, and the compensation matter was remitted to the same Employment Tribunal. The challenge to reconsideration failed.

1. Reconsideration. The post-judgment material was not necessarily new evidence. It could be viewed as drawing a legal argument to the Tribunal’s attention through the Universal Credit letter, and it required reconsideration of the judgment. Alternatively, if the material was evidence and the fresh-evidence test applied, it met the principles in Ladd v Marshall [1954] AE 745, Wileman v Minilec [1988] ICR 318 and Ministry of Justice v Burton [2016] ICR 1128. Ground 2 therefore failed.
2. Mitigation. The Tribunal increased compensation to account for the loss of Universal Credit after payment of the award, but did not consider whether other benefits could have reduced the loss. Compensation should not exceed real loss, and its assessment should be robust and realistic: the EAT relied on Cerberus Software v Rowley [2001] ICR 376, paragraph 27, and Griffiths v Essex County Council [2026] EAT 86. The Tribunal should decide whether Mr Nunns should, despite the £16,000 cap, have mitigated his loss by seeking Job Seekers Allowance or Employment and Support Allowance. The EAT did not decide that he was entitled to either benefit. His reasons for not claiming, including his account of his mental ill health, required consideration; Employment and Support Allowance appeared suited to him at first sight.
3. Remittal. The same Employment Tribunal was to rehear only whether Mr Nunns should have mitigated his loss by seeking either benefit. The appellants were not given leave to advance further arguments.

1. Employment Appeal Tribunal — In [2026] EAT 121 , the challenge to reconsideration failed. The mitigation challenge succeeded, and the compensation issue was remitted to the same Employment Tribunal for a limited rehearing.
2. Employment Tribunal — The Tribunal upheld harassment complaints after a liability hearing from 31 May to 2 June 2023. It awarded compensation on 5 April 2024, then varied the remedy on reconsideration on 18 October 2024, increasing the award from £35,656 to £43,044.