Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+

Personnel Today

Register
Log in
Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+

Case lawEmployment lawUnfair dismissal

Defending tribunal claims: don’t forget mitigation of loss

by Charles Wynn-Evans 29 Mar 2016
by Charles Wynn-Evans 29 Mar 2016

When defending tribunal claims, employers need to gather relevant evidence and prepare arguments about the employee’s efforts to mitigate their loss. Charles Wynn Evans argues this is an essential and easily overlooked aspect of preparation for a tribunal case. 

Whether negotiating severance terms, settling a tribunal claim ahead of a hearing, or addressing the issue of the compensation which a tribunal should award in relation to a successful employment claim (such as for unfair dismissal or unlawful discrimination), employers need to ‎consider carefully and not lose sight of the issue of mitigation of loss.

The case of Cooper Contracting v Lindsey

The recent Employment Appeal Tribunal (EAT) case of Cooper Contracting Ltd v Lindsey reiterates the principles which the employment tribunal must apply when considering mitigation.

More on unfair dismissal and compensation

Employment law manual: unfair dismissal

Quick reference: compensation dismissal

In this case an employer appealed against the award of compensation made by an employment tribunal to a carpenter who had successfully claimed unfair dismissal.

The tribunal accepted that it was legitimate for the claimant employee to mitigate his loss by taking up self employment – which he had enjoyed previously and which suited his preferences at his stage of life and in light of his experiences with the respondent employer.

However, the award of compensation to him was limited to three months on the basis that there were other higher paid opportunities “out there” had he chosen to look for them.

In upholding the tribunal’s decision the EAT took the opportunity to reiterate the principles which apply in relation to mitigation. It also disapproved of the idea that the employee must take all reasonable steps to mitigate – such that a failure to take one reasonable step would automatically put the employee in breach of the duty to mitigate and require a reduction to his or her compensation.

The EAT clarified that the burden of proof is on the employer to show that the claimant has failed to comply with the duty to make reasonable efforts to mitigate – it is not for the employee to show that he or she has not done so. What needs to be shown – by the employer – is that the employee acted unreasonably‎ – the employee does not need to show that he or she acted reasonably.

The views and wishes of the employee need to be taken into account and the tribunal must not apply too demanding a standard to the employee who is a victim of the employer’s wrongdoing.

Just because there is a better paid job which it would have been reasonable for the employee to have taken does not always mean the employee has not mitigated – this will be important evidence but there may be other circumstances which mean that the employee has not acted unreasonably in not taking that alternative position.

A key practical point made by the EAT is that, because the burden of proof lies with the employer and not the employee, if the employer does not put evidence to the tribunal about mitigation, then the tribunal is not obliged to make a finding on the issue.

However confident an employer might be of being able successfully to defend a tribunal claim, if disaster strikes and the employer loses the case, then its position will be further worsened if it has not done sufficient preparatory work to be able to argue mitigation points when it comes to the stage of determining the appropriate remedy by way of compensation.

What employers should do

Employers defending tribunal claims should therefore not forget the need to be ready to address issues of mitigation. Failure to have evidence available to demonstrate the efforts which it argues that the employee should have taken to seek alternative employment can clearly be fatal to attempts to reduce an award of compensation  by reference to mitigation.

Sign up to our weekly round-up of HR news and guidance

Receive the Personnel Today Direct e-newsletter every Wednesday

OptOut
This field is for validation purposes and should be left unchanged.

This can be achieved by collating job adverts for which the employee could have applied, seeking expert evidence about employability in the relevant geographical area and/or industry sector, or by identifying other steps the employee could have taken, such as registering with employment agencies.

While the employer will want to build its own case on mitigation with appropriate evidence, it will also still want to seek full disclosure from the employee of his or her efforts to mitigate, not least in order to be able to critique the employee’s efforts and assess what further evidence could be useful to its case.

Charles Wynn-Evans

Charles Wynn-Evans is a partner at Dechert LLP.

previous post
Government unveils £1 billion programme for mental health
next post
Occupational Health research round-up: April 2016

You may also like

Consultation launched after Supreme Court ‘sex’ ruling

20 May 2025

Black security manager awarded £360k after decade of...

20 May 2025

Minister defends Employment Rights Bill at Acas conference

16 May 2025

CBI chair Soames accuses ministers of not listening...

16 May 2025

Union rep teacher awarded £370k for unfair dismissal

15 May 2025

EHRC bows to pressure and extends gender consultation

15 May 2025

Tribunal finds need for degree in redundancy selection...

14 May 2025

Contract cleaner loses EAT race discrimination appeal

14 May 2025

Construction workers win compensation claim against defunct employer

9 May 2025

Zero-hours workers’ rights to be extended from beyond...

8 May 2025

  • 2025 Employee Communications Report PROMOTED | HR and leadership...Read more
  • The Majority of Employees Have Their Eyes on Their Next Move PROMOTED | A staggering 65%...Read more
  • Prioritising performance management: Strategies for success (webinar) WEBINAR | In today’s fast-paced...Read more
  • Self-Leadership: The Key to Successful Organisations PROMOTED | Eletive is helping businesses...Read more
  • Retaining Female Talent: Four Ways to Reduce Workplace Drop Out PROMOTED | International Women’s Day...Read more

Personnel Today Jobs
 

Search Jobs

PERSONNEL TODAY

About us
Contact us
Browse all HR topics
Email newsletters
Content feeds
Cookies policy
Privacy policy
Terms and conditions

JOBS

Personnel Today Jobs
Post a job
Why advertise with us?

EVENTS & PRODUCTS

The Personnel Today Awards
The RAD Awards
Employee Benefits
Forum for Expatriate Management
OHW+
Whatmedia

ADVERTISING & PR

Advertising opportunities
Features list 2025

  • Facebook
  • Twitter
  • Instagram
  • Linkedin


© 2011 - 2025 DVV Media International Ltd

Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+