Jennifer Benjamin v The Markfield Project

Jennifer Benjamin v The Markfield Project

The appeal on the issue of mitigation fails because the claimant’s objections related to the original remedy judgment, not the reconsideration decision, and were not raised in the reconsideration application. The Tribunal did not err in its approach to mitigation or in treating the application as one for fresh evidence. However, the Tribunal erred in law by failing to address the claimant’s reconsideration application regarding the injury to feelings award, which raised issues potentially affecting the fairness of the hearing. The cross-appeal is dismissed as it raised matters not properly before the Tribunal and did not meet the threshold for perversity.

Parties
Appellant/respondent to the Cross Appeal: Ms Jennifer Benjamin; Respondent/cross Appeal Appellant: The Markfield Project
Jurisdiction
England and Wales
Judgment Date
17 November 2022
Procedural Posture
Employment Appeal / Appeal and Cross Appeal Against Reconsideration Decision
Outcome
Appeal allowed in part; cross-appeal dismissed
Legal Topics
Unfair Dismissal, Disability Discrimination, Race Discrimination, Remedy, Compensation, Mitigation of Loss, Injury to Feelings, Reconsideration Applications
Employment Law Discrimination Law Unfair Dismissal Disability Discrimination Race Discrimination Remedy Compensation Mitigation of Loss +2 more

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Parties

Ms Jennifer Benjamin

Appellant/respondent to the Cross Appeal

The Markfield Project

Respondent/cross Appeal Appellant

Procedural Posture

Employment Appeal / Appeal and Cross Appeal Against Reconsideration Decision

Legal Issues

  1. 1 Whether the Employment Tribunal erred in its approach to mitigation and re-training in the remedy judgment and reconsideration decision
  2. 2 Whether the Employment Tribunal failed to address the claimant’s reconsideration application regarding the injury to feelings award
  3. 3 Whether the cross-appeal raised valid grounds regarding inconsistency of evidence and perversity of the injury to feelings award

Ratio Decidendi

The appeal on the issue of mitigation fails because the claimant’s objections related to the original remedy judgment, not the reconsideration decision, and were not raised in the reconsideration application. The Tribunal did not err in its approach to mitigation or in treating the application as one for fresh evidence. However, the Tribunal erred in law by failing to address the claimant’s reconsideration application regarding the injury to feelings award, which raised issues potentially affecting the fairness of the hearing. The cross-appeal is dismissed as it raised matters not properly before the Tribunal and did not meet the threshold for perversity.

Court Disposition

Appeal allowed in part; cross-appeal dismissed

Orders

  • Appeal on ground (1) dismissed
  • Appeal on ground (2) allowed; claimant’s application for reconsideration regarding injury to feelings remitted to the Employment Tribunal