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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Telindus Ltd v Brading [2008] UKEAT 0143_08_0711 (7 November 2008) URL: http://www.bailii.org/uk/cases/UKEAT/2008/0143_08_0711.html Cite as: [2008] UKEAT 0143_08_0711, [2009] IRLR 192, [2008] UKEAT 143_8_711, [2009] ICR 333

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APPEARANCES

 

UKEAT/0143/08/MAA
For the Appellant	MR JAMES LADDIE (of Counsel) Instructed by: Messrs EEF Legal Services Broadway House Tothill Street London SW1 H9NQ
For the Respondent	MR JAMES WYNNE (of Counsel) Instructed by: Messrs Rowley Ashworth Solicitors Suite 18 Joseph's Well Hanover Walk Leeds LS11 1AB
UKEAT/0164/08/MAA
For the Appellant	MR GERARD CLARKE (of Counsel) Instructed by: Messrs Penningtons Solicitors Da Vinci House, Basing View, Basingstoke Hampshire RG21 4BG
For the Respondent	MR THOMAS COGHLIN (of Counsel) Instructed by: Messrs Doyle Clayton Solicitors 33 Blagrave Street Reading RG1 1PW


 


SUMMARY

UNFAIR DISMISSAL: Compensation

DISABILITY DISCRIMINATION: Compensation

SUMMARY

1. In the Sheffield Forgemasters case, the claimant succeeded in claims for various types of disability discrimination against her former employer.
2. In the Telindus case the claimant succeeded in a claim for unfair dismissal against her former employer.
3. In both cases, the claimants claimed compensation for loss of future earnings in respect of periods when they were receiving incapacity benefit.
4. The Employment Tribunal in each case held that receipt of disability benefit did not preclude the claimants from claiming compensation for loss of earnings during the same period
5. Issues on appeal were the Employment Tribunal correct (a) in each case to hold that receipt of disability benefit did not preclude the claimants from claiming compensation for loss of earnings during the same period; and (b) in Telindus to reject the respondent's contention that the claimant had failed to mitigate her loss.

Held

6. Appeals dismissed by the Employment Appeal Tribunal,
7. As to (a) receipt of disability benefit did not preclude the claimants from claiming compensation for loss of earnings during the same period because the relevant statutory provisions enabled a person who was fit to work to obtain disability benefit (i) in the first 196 days of entitlement if, for example he or she was not being paid for his or her work(see paragraphs 17 -22) and (ii) thereafter if he or she had certain disabilities such as inability to walk up and down a flight of 12 stairs but could still work(see paragraphs 23-27);
8. As to (b) the Employment Tribunal was entitled on the evidence in Telindus to reject the respondent's contention that the claimant had failed to mitigate her loss.


 


THE HONOURABLE MR JUSTICE SILBER

I Introduction

9. Any party who succeeds in a claim in front of the Employment Tribunal for unfair dismissal or disability discrimination is entitled to be paid such compensation as the Employment Tribunal "considers just and equitable" (see for example, Disability Discrimination Act 1995 section 17A (2)). One head of claim of compensation is often the employee's loss of future earnings which requires a calculation to be made of the earnings which the employee would have received if he had not been unfairly dismissed or the subject of discrimination. In this judgment, we will refer to the parties by the roles they had in the Employment Tribunal and in addition we will refer to the cases of Sheffield Forgemasters International Limited v Mr A M Fox and Telindus Limited v Mrs Caroline Brading respectively as the "the Sheffield case" and "the Telindus case".
10. Both these appeals, which have been heard together, raise the common issue of how an Employment Tribunal should calculate the claimant employee's future loss of earnings for a particular period if the employee is also receiving disability allowance for that period. In both the cases, the Employment Tribunal held that the claimant employees were entitled to be compensated for the earnings which they would have received had they not been unfairly dismissed or discriminated against even though during that period they were also receiving disability allowance. The case for both of the respondent employers is that this is wrong as a matter of law and as a matter of logic because the claimants should not be entitled to receive compensation for loss of wages in respect of any period during which they were receiving incapacity benefits.
11. Mr James Laddie, who is counsel for the respondents in the Sheffield case contends that the true position is that where a dismissed employee is awarded incapacity benefits after the termination of his employment, the general rule is that the employee has to be regarded as having been incapable of working for his employer over the period during which incapacity benefit is awarded and so he is not eligible for or entitled to compensation for loss of earnings. Exceptions to the rule would cater for the cases where the award of incapacity benefit does not break the chain of causation connecting the termination of employment with a loss of income such as where the nature and consequences of the termination was that the employee becomes so incapacitated that he or she then became entitled to incapacity benefits. The exception is not relied on or relevant to either of the cases before us.
12. The basic approach of the claimants is that although incapacity benefits are paid when somebody is "incapable of work", those words are a deeming provision. So the statutory phrase "incapable of work" does not necessarily coincide with or equate to an individual's actual inability to work but it has a special meaning set out in the relevant legislation. Thus it is said on behalf of the claimants that this shows the crucial and fatal error in the respondent's submissions, which is that claimants are only entitled to receive incapacity benefits if they were incapable of working.
13. In the Telindus case, there is an additional ground of appeal which is that the Tribunal erred in finding that the claimant had made reasonable efforts to mitigate her loss. That is a point with which we will deal with in paragraphs 49 to 54 below but after we have set out the statutory provisions and considered the main point which is how an Employment Tribunal when assessing compensation for disability discrimination or unfair dismissal should take into account the receipt in the same period by the claimant of incapacity benefits.

II The Statutory Provisions

14. Incapacity benefit was introduced from 13 April 1995 replacing the previous system of sickness benefit and invalidity benefit. The system of incapacity benefit has now been replaced with effect from 27 October 2008 by new statutory provisions introduced in the Welfare Reform Act 2007 ("the 2007 Act") but this case does not concern those provisions. At one stage of the argument, it was suggested by Mr James Wynne counsel for the claimant in the Sheffield Forgemasters' case that assistance in construing the provisions in respect of incapacity benefits could be obtained by looking at the 2007 Act. This point was correctly in our view not pursued because our task is to focus on the provisions in force when the present cases came in front of the Employment Tribunal and that entails considering the legislation in force before the 2007 Act came into force.
15. It is common ground that each of the claimants in this case have satisfied the conditions set out in section 30A of the Social Security Contributions and Benefits Act ("the 1992 Act") which entitles them to "short-term incapacity benefit in respect of any day or incapacity for work which forms part of the period of incapacity for work".
16. Short-term incapacity benefit is payable at two rates with the lower rate being for the first 196 days entitlement in any period of incapacity for work (which we will call the "first period") and a higher rate for the remainder of the period, which we will call "the second period". Section 30C of the 1992 Act defines what is meant by "day of incapacity for work". In so far as is material to the appeal, it provides that:-

"(1) For the purposes of any provisions of this Act relating to incapacity benefit, subject to the following provisions and save as otherwise expressly provided- (a) a day of incapacity for work means a day on which a person is incapable of work…"

17. Section 171B of the 1992 Act explains what is meant for determining whether an individual is incapable of work by stating (so far as material to this appeal) that:-

"(1) Where a person has been engaged in remunerative work for more than 8 weeks in the 21 weeks immediately preceding the day with respect to which it falls to be determined whether he is or was incapable of work, the own occupation test is applicable in this case.

(2) The own occupation test is whether he is incapable by reason of some specific disease or bodily or mental disablement of doing work which he could reasonably be expected to do in the course of the occupation in which he was so engaged."

18. It is common ground that the "own occupation test" in Section 171B applies in both the Sheffield and the Telindus cases because both claimants had been engaged in remunerative employment for more than eight weeks in the twenty-one weeks immediately prior to their claim for incapacity benefits. It is also agreed by all counsel that this test applies for the first 196 days of the claims namely the first period.
19. Thereafter the eligibility for incapacity benefits depends on a totally different test for the second period which is that set out in section 171C(1) of the 1992 Act which relates to "a personal capability assessment" and we will return to consider it in paragraphs 23 to 28 below.

III The Test in the First Period

20. It is provided in section 171A (2) of the 1992 Act that regulations may be made as to "(a) the information or evidence required for the purpose of determining whether a person is incapable of work". The relevant regulations are the Social Security (Incapacity for Work) (General) Regulations 1995 (SI 1995/311) ("the 1995 Regulations").
21. The information required for the purpose of determining whether a person is "incapable of work" is set out in regulation 6(1) of the 1995 Regulations which provides that:-

"(1) [Subject to paragraphs (2) and (3)] the information or evidence required for the purposes of determining whether a person is capable or incapable of work [and the information or evidence required which is capable of being used for assisting or encouraging a person to obtain work or to enhance his prospects of obtaining it,] is:-

(a) where the own occupation test… applies, [or where the question of whether a person is capable or incapable of work falls to be determined in accordance with the personal capability assessment,] evidence of his incapacity for work in accordance with the Social Security (Medical Evidence) Regulations 1976 (which prescribe the form of doctor's statement or other evidence required in each case."

22. The Social Security (Medical Evidence) Regulation 1976 ("the 1976 Regulations") provides that:-

"2. (1) [Subject to regulation 5] [where a person claims he is entitled to any benefit, allowance or advantage (other than industrial injuries benefit or statutory sick pay), and his entitlement to that benefit, allowance or advantage depends on his being incapable of work [or having limited capability for work], then in respect of each day until he has been assessed for the purposes of the [personal capability assessment] [or the limited capability for work assessment], he shall provide evidence of such incapacity] [or limited capability for work}–

(a) by means of a certificate in the form of a statement in writing given by a doctor in accordance with the rules set out in Part 1 of Schedule 1 to these Regulations on the form set out in Part II of that schedule."

23. The critical issue is whether the statutory test for the first period necessarily means that an individual who receives incapacity benefits would not have been able to continue to work in his previous employment. At first sight, it seems that the statutory phrase "incapable of work" might well indicate and indeed also show conclusively that an individual's actual inability to work and so if an employee is "incapable of work", he must be regarded as unable to earn during that period.
24. The case for the claimants is that many of those who would fall within the phrase "incapable of work" for the purpose of incapacity benefits might well be able to work in the light of the very special deeming meaning given to that phrase in the deeming provisions in the 1995 Regulations. We regard that submission as correct as can be seen by some of the statutory provisions which have the effect of deeming somebody "incapable of work" when he or she can quite clearly work and does work.
25. First, Regulation 10A(1) of the 1995 Regulations provides that "a person to whom this regulation applies shall be treated as incapable of work on any day in a period of incapacity for work on which he does any approved work in respect of which no payment in the nature of earnings is expected or made". This regulation applies to different groups of people including somebody who is "engaged in approved work on a trial basis" (Regulation 10A(2)(c)).
26. So it follows that somebody working on a trial basis in "approved work" would be entitled subject to other conditions to incapacity benefits even though there would be no reason why an Employment Tribunal could not regard this person as somebody who would have been able to work and earn wages during that period. In consequence, compensation could be awarded in respect of loss of wages for that period even though the individual was invoking that regulation to obtain incapacity benefit. He would of course not be entitled to receive more than the value of incapacity benefit or the earnings which he would have received whichever the larger.
27. Second, Regulation 16(1) of the 1995 Regulations provides that "a person should be treated as capable of work on each day of any week during which he does work". So far that would be supportive of the respondents' claim that a person who obtains incapacity benefit must automatically be regarded as unfit to work. There are, however, very significant exceptions such as Regulation 16(3)(b) which refers to "approved work under regulation 10A" which relates to the form of work to which we referred to in paragraph [] above.
28. A third exception in which a person able to work can receive incapacity benefits is in Regulation 16(3) (e) which provides that "(e) any of the categories of work set out in regulation 17". Those categories include "work for which the earnings in any week do not exceed £20" and "work for which the earnings in any week do not exceed £92".
29. Fourth, there are other categories in Regulation 17 which enable a fit person to receive incapacity benefits and these include "6. work done as a volunteer". So receipt of incapacity benefits for such a person does not mean that he or she is unable to work.
30. It follows therefore that many of the people who are deemed "incapable of work" and entitled to incapacity benefits in the first period would be regarded quite correctly by an Employment Tribunal as people well able to do work and so entitled for the same period to compensation for loss of earnings. Thus in respect of the first period, we have come to the conclusion that the deeming provisions in the 1995 Regulations which deem a person who actually works as "incapable of work" mean that the fact that an individual claims and receives incapacity benefit in the first term, does not automatically and necessarily mean that he or she is incapable of working. It is important for the Employment Tribunal to consider all the evidence (including if the information is available the basis of any application made by a claimant for incapacity benefits) before deciding if he or she would have earned any money in a period for which compensation is being claimed.

IV The Test in the Second Period.

31. The test applied for eligibility for incapacity benefits in the second period is a "personal capability assessment" ("PCA"), which means that an individual is eligible for incapacity benefit if he or she scores sufficient points according to the points specified for certain disabilities in the 1995 Regulations. The chain of statutory provisions starts with Regulation 6(1) of the 1995 Regulations which provides that:-

"(b) [where the question of whether a person is capable or incapable of work falls to be determined in accordance with the personal capability assessment], such information –

a. relating to a persons ability to perform the activities referred to in the Schedule, or

b. capable of being used for assisting or encouraging a person to obtain work or to enhance his prospects of obtaining it,

as the Secretary of State may request in the form of a questionnaire;]."

32. Regulation 25 of the 1995 Regulations explains the assessment in the following way:-

"(1) For the purposes of section 171C(2)(b) of the Contributions and Benefits Act a person is incapable of work in accordance with the personal capability assessment when one or more of the descriptors in Part 1 or Part II apply to him if, by adding the points listed in column (3) of the Schedule against the descriptor, he obtains a total score of at least-

(a) 15 points in respect of descriptors specified in Part I; or Part II …"

33. Regulation 25 of the 1995 Regulations provides the qualifying scores under the Schedule for determining whether a person is incapable of work. The required number of qualifying points is 10 or 15 depending on the classification of the condition. The schedule attributes scores to specific levels of disabilities.
34. We agree with the submission of the claimants that achieving 10 or 15 points does not correspond with an actual or factual incapacity to work. To score 15 on a PCA test would result in a person being deemed for the purposes of the 1992 Act as "incapable of work" but crucially those scores do not necessarily mean that the person is actually or in fact incapable of work. Many people who obtain 15 points can and do still work. This can be shown from the fact that a person may obtain a score of 15 even though he or she may obviously be perfectly capable of carrying out a wide variety of jobs if, for example, he or she:

(a) cannot walk up and down a flight of twelve stairs (Part 1 of the Schedule to the 1995 Regulations at paragraph 2(b));

(b) "cannot bend to touch his knees and straighten up again" ((Part 1 of the Schedule to the 1995 Regulations at paragraph 6(a));

(c) suffers from incontinence (part 1 of the Schedule to the 1995 Regulations at paragraph 13); and

(d) loses consciousness at least once a month (Part 1 of the Schedule to the 1995 Regulations at paragraph 14(c)).

35. Moreover many of these people, who would obtain the score 15 on a PCA test, such as a deaf person or a blind person or a wheel chair user, who if unfairly dismissed and would thereafter quite properly claim incapacity benefit would effectively and automatically be barred from damages for loss of earnings after twenty eight weeks of unemployment if the respondents' case is correct. In our view that cannot be right as being eligible for incapacity benefits does not mean that the individual could not obtain paid work during that period.

V Conclusions on the Effect of a Claimant Receiving Incapacity Benefits During a Particular Period on His or Her Claim for Compensation for Loss of Earnings During That Period

36. For all the reasons which we have set out above, we have concluded that the fact that an individual has obtained incapacity benefit does not in itself show that he or she might not have been able to work and earn money during the second period, although the fact that the claimant has received incapacity benefits might indicate in a particular case that the claimant could not have earned any money. There might be cases (unlike the two present appeals) in which the Employment Tribunal has evidence of the basis of the claim for incapacity benefits and the material adduced in support of that claim which undermine any claim that the claimant was fit to work during a particular period. We are fortified in coming to the conclusion that receipt of incapacity benefits does not mean that a claimant was unable to work by two other matters.
37. First, we respectfully agree with the statement of Lindsay P sitting in the Employment Appeal Tribunal in Monagham v Close Thornton (unreported, EAT 20 February 2002) in which he said that:-

"if the Tribunal had jumped from the fact that she was in receipt of incapacity benefit to a conclusion that she was on that account unable to work that would not have been justified by the Incapacity Benefit Rules. The Social Security (Incapacity for Work) (General) Regulations 1995 at Regulation 25 show that what the benefit system is concerned with is a form of deemed incapability for work which is not necessarily an actual inability to work. Miss Cunningham shows us, for example, that a person who cannot walk at all is to be deemed for the purposes of those Regulations to be incapable of work even though, as is, of course, possible, he or she is holding down a full-time job."

38. Another factor which fortifies our view is the accurate explanatory passage in Halsbury's Laws of England (volume 44 (2) at paragraph 59) where it is stated of the incapacity benefits regime that:-

"This system was radically changed, as from 13 April 1995, by the Social Security (Incapacity for Work) Act 1994. The statutory sick pay scheme remains as before, but sickness and invalidity benefits were abolished and replaced by incapacity benefit, payable at three levels: lower rate short-term benefit for the first 28 weeks, higher rate short-term benefit for the remainder of the first year, and long-term benefit into the future, with additions for age and dependants.

Equally radical was the complete change in the manner of establishing incapacity for work. Previously, this was a question of fact, taking into account the claimant's actual ability to undertake work that he could reasonably be expected to do, but that link was actual ability to work has now been broken; such ability is only relevant while the "own occupation test", which is normally for the first 28 weeks, but thereafter the claimant is subject to the "all work test", which is based on a series of work-related functions and a medical assessment of whether the claimant can perform them; they are scored on a points system and continued qualification for the benefit depends on scoring the requisite number of points, not on actual ability or inability to do any particular work."

VI The Appeal in the Sheffield Forgemasters Case.

39. The claimant is a disabled person for the purpose of the Disability Discrimination Act 1995 as he suffers from a skin disease called hidradentis suppurtova, which has physical symptoms. The respondent employed the claimant as a labourer from 25 April 2005 but his employment was terminated with effect from 17 March 2006.
40. By a judgment promulgated on 17 January 2008, the Employment Tribunal upheld the claims of the claimant of direct discrimination, disability-related discrimination and discrimination by reason of failure to make reasonable adjustments. None of those findings has been appealed.
41. The Employment Tribunal proceeded to consider the remedies and apart from awarding £7,500 for injuries to the claimant's feelings, it awarded him £30,904.30 for loss of earnings from the date of dismissal until the date of its deliberations (4 January 2008) but it made deductions for incapacity benefits received. This led to a total sum of past lost earnings amounting to £25,237.50. It also awarded as loss of future earnings the sum of £10,070.84. This appeal relates to the claim for loss of future earnings.
42. The Employment Tribunal rejected the argument advanced on behalf of the respondent that because the claimant was in receipt of incapacity benefits paid from the date after his employment was terminated this broke the chain of causation flowing from the wrongful acts of discrimination. The Employment Tribunal also rejected the respondent's contention that there was no loss because the respondent would have been dismissed in any event.
43. For the reasons which we have explained, we do not accept that the claimant is precluded for claiming compensation for loss of future earnings in respect of the periods for which he was receiving incapacity benefits merely on the grounds that he was receiving those benefits. Incapacity benefits in this case covered both the first and the second period but, as we have explained, in sections III, IV and V above, the mere fact that the claimant for a period received incapacity benefit did not preclude him from receiving compensation for loss of earnings during that period, although he would not receive more than the incapacity benefits or the loss of earnings, whichever was the greater.
44. In its Grounds of Appeal, the respondent contends that the Tribunal erred in law and/or reached a perverse conclusion in finding that the claimant is "still required to work he can do. Indeed he is still looking such work" in circumstances where the claimant was deemed "incapable of work" for the purposes of claiming incapacity benefits. As we have explained, the mere fact that an employee might be deemed "incapable of work" for the purpose of claiming incapacity benefit does not mean that he or she is unable to work. Thus we cannot accept that contention or the further ground that the claim made by the claimant for incapacity benefit somehow broke the chain of causation. As we will explain, there was ample evidence that the claimant was able to work during the period when incapacity benefits were paid.
45. Indeed the Employment Tribunal found that after his dismissal, the claimant sought and obtained work at Bassett's sweet factory for three weeks through an agency and he had hoped that it would be a full week's work but it transpired that he would only be working for one day a week. As the claimant could not find other work, he then claimed incapacity benefit. There was ample evidence that the claimant was actually able to work as otherwise he would not have been able to obtain and actually do work at work at Bassett's sweet factory.
46. The claimant then found voluntary work which actually entailed him working five days a week for around 40 hours a week for 2 ½ months. This again shows that he was capable of working even though he received incapacity benefits. We have explained in paragraph 21 above that a person will be deemed "incapable of work" for the purpose of claiming incapacity benefits even though he does voluntary work.
47. The claimant has said that he applied for other jobs and the Employment Tribunal explained in paragraph 33 of his reasons as I have already explained that he is "still required to look for work he can do. Indeed he is still looking such for work".
48. In those circumstances, we infer that the claimant was able to work and that the Employment Tribunal was quite entitled to conclude that he would have been working during the period when he received incapacity benefits. We reject the claim by Mr Laddie that the Tribunal erred in law and/or reached a perverse conclusion in finding that the respondent "would not have dismissed the claimant and the level of any future absences is unknown". This submission is based on the fact that the claimant received disability benefits and so he could not work but, as we have explained, we reject this argument. In any event, there was clear evidence, which we set out in paragraphs 37 and 38 above that the claimant could and did work during the period in which he received incapacity benefits.
49. The Tribunal explained that if the respondent had followed its absence procedure, it would not have dismissed the claimant and the level of any future absence on his part was unknown. There are no errors of law in the decision of the Employment Tribunal which was open to it on the facts. So the respondent's appeal in the Sheffield Forgemasters' case must be dismissed.

VII The Appeal in the Telindus Case

(i) Introduction

50. The claimant had commenced her employment with the respondent in January 2001 as an Events Manager and she was promoted to the job of Marketing Manager in December 2003. Her employment was terminated on 21 April 2006.
51. The claimant was in receipt of incapacity benefits from the time of her dismissal in April 2006 and she continued to be in receipt at the time of the remedies hearing in August 2007 nevertheless the Employment Tribunal found that the claimant was able to work at the relevant time.
52. By a decision sent to the parties in July 2004, the Employment Tribunal sitting at Reading found that the claimant had been unfairly dismissed, that she had been discriminated against for a reason relating to her disability and that she had also been discriminated against because of a failure by the respondent to make reasonable adjustments in relation to the claimant. By a subsequent decision dealing with the issue of remedies sent to the parties on 13 September 2007 the Employment Tribunal held that the claimant had not failed to mitigate her loss and it awarded her compensatory loss.
53. Mr Gerard Clarke for the respondent submits first that in the words of his skeleton "there can, as a matter of law and logic, be no claim for loss of earnings for the period during which Mrs Brading was classified by the state as being incapable of working" because she was receiving incapacity benefits. His second submission is that the Employment Tribunal erred in finding that the claimant had made reasonable efforts to mitigate her loss when she had taken no steps to find work before June 2007 notwithstanding that there was evidence that she could have sought work from April 2006 and on her evidence she was able to work from January 2007.

(ii) The first ground of appeal

54. The claim for the respondent is that the claim for and the receipt of incapacity benefit showed that the claimant was unable to work. We have explained in sections III to V above that the fact a claimant is in receipt of incapacity benefit in a particular period does not indicate or show that the claimant would have been unable to work during the same period.
55. A similar approach was adopted by the Employment Tribunal as appears in paragraph 4 of its reasons when it stated that:-

"We reject the respondent's contention that because the claimant was in receipt of incapacity benefit she was incapable of working. The claimant was diligently looking for work and should not be criticised for claiming incapacity benefits as opposed to job seeker's allowance. Incapacity benefit does not mean the claimant was incapable of working but that she was able to come within that category it was logical for her to claim it rather than the lower level of income support."

56. We cannot see anything wrong with that approach which is consistent with our earlier conclusions in sections III to V above.

(iii) The second ground of appeal

57. The case for the respondent on the second point is that the claimant should have looked for, but did not look for, work between April 2006 and June 2007. It is said that the medical evidence of the occupational health specialist was that she could have sought a phased return to work from April 2006 and on her own evidence she could have worked from January 2007 but in spite of that the case for the respondent was that the claimant did not mitigate her loss as she did not start her job search until June 2007. There was according to Mr Clarke undisputed evidence of ample availability to work in the business sector in which the claimant had experience.
58. The approach of the Employment Tribunal was that the onus was on the respondents to show on the balance of probabilities that there had been a failure by the claimant to mitigate. It then concluded that:-

"1..we were impressed with the claimant's evidence regarding her desire to get back into the workplace as soon as possible."

59. It then proceeded to explain that she had first applied for around 25 jobs, second created a website for herself for freelance jobs, third pursued general networking and fourth approached a large number of recruitment agencies.
60. The Employment Tribunal then concluded that:-

"3. we have no hesitation in dismissing the argument of the failure to mitigate. The claimant had been doing her best to achieve employment earnings."

61. The ground of appeal of the respondent on this issue contains the contention that before June 2007 the claimant "took no steps to find work" and "did not start her job search" but this was not the subject of any factual finding. Indeed the Employment Tribunal reached a contrary conclusion.
62. Indeed, according to the agreed note of evidence before the Employment Tribunal, the claimant explained when giving evidence that the first job application which she made was on 12 June 2007 and that was because it was the first relevant job that came up and that she had not previously seen any jobs relevant to her skills. She explained that she had applied for every job which she thought she could do and that she had been actively looking. It was open to the Employment Tribunal if they thought fit to make a finding that she had not taken all reasonable steps but their finding was to the contrary, as we explained in paragraphs 50 to 52 above.
63. In our view, the Employment Tribunal were quite entitled to reach the conclusion which it did. Mr Clarke with characteristic good sense accepts correctly in our view that he cannot pursue his claim based on perversity. Indeed his submissions would not have reached the high threshold needed for showing perversity which the Court of Appeal specified in Crofton v Yeboah namely that:

"an overwhelming case is made out that the Employment Tribunal reached a conclusion which no reasonable tribunal on a proper appreciation of the evidence and the law would have reached" (per Mummery LJ [93] with whom Sir Christopher Slade and Brooke LJ agreed).

VIII. Conclusion

64. For those reasons all appeals must be dismissed