Employment Appeal Tribunal Overturns Compensation and Costs Decision in Unfair Dismissal Case
The Employment Appeal Tribunal has ordered a re-determination of compensation and costs after identifying legal errors regarding mitigation of loss and procedure.
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Legal Error Found in Compensation and Costs Assessment
The Employment Appeal Tribunal (EAT) has set aside a previous tribunal’s decision concerning remedy in an unfair dismissal case. Judge Mathew Gullick KC determined that the Employment Tribunal made significant legal errors when calculating both the compensatory award for loss of earnings and a preparation time order.
The claimant, Ms Kirkland, successfully challenged the original tribunal’s finding that she had failed to mitigate her loss. The EAT confirmed that the legal burden of proof rests on the employer to demonstrate that a claimant has acted unreasonably in failing to mitigate their losses. It found that the original tribunal failed to apply this test correctly, essentially reversing the burden of proof onto the employee.
"Broad Brush" Approach Rejected for Preparation Time
Regarding the preparation time order, the original tribunal had awarded a fixed sum of £1,000 without explicitly calculating the number of hours involved. The claimant argued that this approach failed to satisfy the requirements of Rule 79 of the Employment Tribunal Rules of Procedure 2013, which mandates that such awards must be based on a specific number of hours multiplied by the relevant hourly rate.
Judge Gullick KC agreed, noting that the rules require the tribunal to determine a reasonable number of hours spent on preparatory work. He rejected the respondent's submission that a "broad brush" fixed sum was acceptable, stating that the tribunal was required to engage with the evidence regarding time spent. The judge concluded that the original tribunal's reasoning was insufficient and lacked the necessary detail required by the rules.
Consequently, both the compensatory award and the preparation time order have been remitted for re-determination by a differently constituted Employment Tribunal. The ACAS code uplift will also be subject to recalculation following the new assessment of the compensatory award.
Read the entire judgment here: Kirkland v Caroline Mason t/a Hawthorn Education Services [2026] EAT 108
