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Mitigation of Loss

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[Thanks to Louise Jones of Temple Garden Chambers for providing this case summary]

The EAT (Keith J) has handed down judgment in Kelly v University of Southampton, upholding the tribunal's finding that the Claimant, an academic, had failed to mitigate her loss by failing to apply for either of two vacant posts for which she was qualified in the University's relevant academic school. The tribunal limited the Claimant's loss of earnings up to the date by which she would have been appointed to one of the posts.

The finding was challenged on the basis that the tribunal was not entitled to find that the Claimant would actually have been appointed to one of the posts, and only heard evidence stating that she was qualified to apply, which is a different animal.

The EAT, however, upheld the tribunal's finding; the tribunal was entitled to rely on facts they had heard covering the length of time that she 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.