Recent Case Law - October 2010

Thursday 28th October 2010

Failure to mitigate losses

In Kelly - University of Southampton, the EAT upheld the Tribunal's finding that the Claimant, an academic, had failed to mitigate her loss by not applying for either of two vacant posts for which she was qualified in the University's relevant academic school. Her losses were limited to the period up to which she would have been appointed to one of the posts.

The EAT held the tribunal was entitled to rely on facts they had heard covering the length of time that the Claimant had worked at the University, the circumstances of her previous dismissal and her qualifications - to arrive at their conclusion that the Claimant would or was extremely likely to have been appointed to one of the posts.

This case serves as a reminder of the importance and relevance for Respondents to collate evidence showing vacancies which the Claimant could apply for in order to challenge the Claimant's mitigation of loss and hopefully reduce any award.

Victimisation of past employee

In the case of Bullimore v Pothecary Witham Weld Solicitors and another, the EAT held that an employer who victimises a past employee by providing a poor (discriminatory) reference to a prospective new employer is liable to compensate the employee for their future loss of earnings caused by the new employer subsequently withdrawing the offer of employment. This is despite the new employer's actions being unlawful.

Comment:

There appears to have been an increased unwillingness by employers to provide employees with references, presumably due to the risk of any future litigation. Whatever policy the employer adopts as to providing references, it should be applied fairly and consistently. References should be true and accurate in all respects.

HM Land Registry v Grant EAT.

The EAT overturned an Employment Tribunal's decision that a manager who ‘outed’ a gay employee at work was guilty of discrimination and harassment on the ground of sexual orientation. The EAT held that the Tribunal had failed to take into account that the employee was open about his sexuality when working at another employer's offices, nor had it expressed a view on the reasons for the manager's actions.

Comment:

"Harassment" as now set out in section 26 of the Equality Act 2010, involves conduct which has the "purpose or effect" of violating that persons dignity or creating an intimidating, hostile, degrading humiliating or offensive environment for that person. In the case above, the fact that the employee had been open about his sexuality to others and his manager knew about this, was relevant to the question of whether the conduct had the "purpose" of harassment.

In all cases, managers and other staff should be extremely cautious when aware of sensitive information and ensure that they do not divulge it without the consent of that person, whether that person has made it known to others or not. All employers should ensure that they have policies and procedures in place and provide appropriate staff with training to ensure that discrimination including harassment does not occur in the work place and that such conduct will not be tolerated.

Author: Administrator

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