Irrelevance can be a key factor: Mears, a legal secretary, worked for Lloyd Green & Co solicitors. She brought tribunal complaints of unfair and wrongful dismissal, both of which were conceded prior to hearing. In the intervening period, Mears joined a number of employment agencies and was entirely candid, stating that she had a case pending against her former employers. She also declined to seek a reference from Lloyd Green & Co.
The tribunal hearing was only concerned with the assessment of compensation, and awarded £5,325 for wrongful dismissal, a basic award of £230 and a compensatory award for unfair dismissal of £9,501.
However, it then reduced her compensation on the basis that she had failed to mitigate her loss. The tribunal’s rationale was that Mears had acted irresponsibly in failing to seek a reference, and had been extremely unwise to mention to the employment agencies that she had a pending tribunal case. The tribunal concluded that these matters had impeded her from getting a new job and resulted in the failure on her part to adequately mitigate her losses. Mears appealed to the Employment Appeal Tribunal (EAT).
She was successful. Although it is for the respondent to show that an applicant has behaved unreasonably in taking steps to mitigate loss, in this case the tribunal improperly considered irrelevant factors so far as Mears’ attempts to mitigate her loss were concerned. The case was sent back to a new tribunal for reconsideration of whether Mears had mitigated her loss.