Tribunal awards: Mitigation of loss

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Tribunal awards: Mitigation of loss

Published 10 enero 2023

The EAT has held that an employment tribunal should have considered evidence before holding that a claimant’s failure to look for jobs was not an unreasonable failure to mitigate her loss.

Mrs Harrington was employed by Hilco Capital Limited.  She successfully claimed that she had been unfairly dismissed for whistleblowing.  At a remedy hearing, she explained that she had not looked for or applied for any jobs since being dismissed.  She said that this was partly because any such application would have been pointless, because any prospective employer would have stigmatised her as a whistle-blower, and not given her a job. The tribunal found that, on that basis, her failure to apply for any jobs did not amount to an unreasonable failure to mitigate her loss up to the date of the liability decision. 

Hilco appealed to the EAT, and its appeal was upheld.  The EAT held that the tribunal had erred in making this decision in the absence of any evidence either on the basis of experience arising from any actual job application, or a finding of fact by the tribunal which supported Mrs Harrington’s case about what would have happened had she made a job application. 

WHAT DOES THIS MEAN FOR EMPLOYERS?

This is a helpful reminder that former employees need to provide some evidence when maintaining they have been unable to mitigate their loss. It is not sufficient simply to assert this.  On the flip side, employers who wish to run arguments that an employee has failed to mitigate their loss will also wish to gather their own evidence to prove this, such as adverts for jobs which a claimant could and should have been applied for to mitigate their loss.   

Hilco Capital Ltd v Harrington

Authors

Ceri Fuller

Ceri Fuller

London - Walbrook

+44 (0)20 7894 6583

Zoë Wigan

Zoë Wigan

London - Walbrook

+44 (0)20 7894 6564

Hilary Larter

Hilary Larter

Leeds

+44 (0)113 251 4710

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