VACANT POST

Kelly v University of Southampton

Tribunals will only compensate employees for loss of earnings if they have fully mitigated their losses, i.e. done everything reasonable to minimise the loss. In Kelly v University of Southampton, the Employment Appeal Tribunal (EAT) said that, in deciding whether she had mitigated her losses, tribunals are entitled to make an assessment about whether the claimant would have been offered one of a number of jobs, had she applied for them.

Basic facts

Dr Kelly (an American citizen) successfully applied for a post at Southampton University in January 2001, subject to obtaining the necessary immigration approval. Her appointment was approved for 60 months, but the Home Office only gave her a visa to stay in the UK for 48 months.

The university wrote to her in February 2001, confirming that she would be employed by them for five years, but that “employment beyond 8 January 2005 is dependent on you gaining leave to remain and work in the United Kingdom." As she had not managed to do so by that date, the university dismissed her.

The tribunal dismissed her claim of unfair dismissal, but the EAT allowed her appeal (see weekly LELR 58) and remitted the case to the tribunal to decide whether Dr Kelly was entitled to compensation for unfair dismissal.

Tribunal decision

The tribunal said that as Dr Kelly had not applied for a couple of suitable vacant posts at the university, she had failed to mitigate her loss.

Had she applied for them, it said she would very likely have been appointed to one of them by the end of June 2005 and therefore limited her award for loss of earnings to that date.

It also said that she had failed to mitigate her loss after that by not applying for vacant jobs at other universities that Southampton had identified. The tribunal therefore said that, had it not already limited her award for loss of earnings to the period up to 30 June 2005, it would have limited it to the period up to 31 January 2006.

Ms Kelly appealed on the basis that although she was qualified to apply for the posts at Southampton, that was very different from saying she would very likely have been appointed to one of them.

EAT decision

However, the EAT upheld the tribunal’s decision, saying that it was reasonable to conclude, based on the facts, that she would most probably have got one of the jobs.

Ultimately, “the question was whether, in the light of everything which the Tribunal knew of the history of Dr Kelly's employment with the university, the circumstances of her dismissal, and her qualifications and suitability for the posts, she would have been offered them, even if she could only be considered for them in open competition, with perhaps many other candidates. The Tribunal may have expressed its view more robustly than might have been appropriate, when it said that she would have been offered them, but that assessment was a matter for the Tribunal's judgment”.

It therefore dismissed her appeal.