Mitigation of Loss

Thanks to Barnaby Large of No.18 Barristers Chambers for preparing this case summary.

The EAT (Langstaff P) has summarised the main principles in decisions on mitigation of loss in Cooper Contracting Ltd v Lindsey.

The Claimant carpenter was found unfairly dismissal and awarded losses on the basis he was entitled to have commenced true self-employment post dismissal but there were better paid employed opportunities "out there".

The Respondent's grounds of appeal argued inadequate reasoning by the employment tribunal, stating the Claimant had not reasonably mitigated his loss between dismissal and the hearing.

Dismissing the appeal the EAT summarised the legal approach to mitigation:-

- the burden of proof is on the wrongdoer - not the Claimant - so, without the former submitting mitigation evidence, the employment tribunal has no obligation to make a finding;

- the Claimant must be shown to have acted 'unreasonably', not necessarily 'not reasonably';

- determination of unreasonableness is a question of fact, taking account of the Claimant's views and wishes, though assessment is objective.

- the employment tribunal should not put Claimants on trial as if losses were their fault;

- the employment tribunal's approach is: "It is for the wrongdoer to show that the Claimant acted unreasonably in failing to mitigate";

- failure to take better paid jobs do not necessarily satisfy the test.