Kelly v University of Southampton

The employee, a US citizen employed as a lecturer at the respondent university, had her employment suspended because her leave to remain in the UK was reduced. Despite the fact that she was subsequently given leave to remain in the UK to a date after the expiration of her contact, she was dismissed because her employment after expiry of her leave to remain had been illegal. It was found that the dismissal was unfair. However, the Tribunal concluded that the employee had failed to mitigate her loss by not applying for either of two vacant posts within the same university department for which she had the necessary qualifi cations. The employee appealed, alleging that the university should have offered her one of these positions without having to go through the recruitment process.

The Employment Appeal Tribunal (EAT) held that the employee had failed to mitigate her loss. She was qualifi ed for these posts, had worked in the same department for the four previous years and lost her job in circumstances which did not refl ect badly on her. Therefore the employee would have been offered, or was extremely likely to have been offered, the posts had she applied for them.

Employees’ compensation will be reduced by the Tribunal where the employees have failed to take positive action to mitigate their loss.