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Mitigation

It is frustrating to win your case, but get limited compensation because you can’t convince the tribunal that you have done a reasonable amount to find work – what’s called ‘mitigating your loss.’

It is important to make sure you collect evidence of all your mitigation efforts. If you are claiming benefits for which you have to be available for work, you will have to show the JobCentre some evidence that you have been looking for work. But bear in mind that evidence that is sufficient to convince a bored and underpaid JobCentre worker may not stand up to the kind of scrutiny you can expect from an employment tribunal.

Your aim, in collecting evidence of your mitigation efforts, should be to collect together a pile of papers so enormous that the respondent’s lawyers feel tired just looking at it, and can’t face trying to cross-examine you on it at all. papers.jpg

With this aim, do the following. Keep a diary of your job search. Aim to take at least one step every weekday day to find work, and record it in your diary. Make a note every time you look for jobs in a newspaper, or visit the JobCentre, or visit or telephone a particular employer. If for some reason you are not able to take any steps at all on a particular day, make a note in your diary of the reason why. Keep a file of relevant papers in chronological order. Put in it clippings of all newspaper adverts you follow up, a copy of every application you make, a copy of every rejection letter or invitation to interview that you receive.

Keep copies of the cost of your job search in the same file: keep your train or bus tickets if you have to travel to an interview, and receipts for printing costs if you have to print copies of your CV.

Bear in mind that the longer you are out of work, the more you will have to prove: if you find another job in 3 months or less, it is unlikely that the respondent will even try to argue that you have not done enough to mitigate. But if you are out of work for 9 months or a year – especially if you are still out of work at the time of the hearing – you will almost certainly face close questioning about what you have done and why you have not succeeded yet.

4 comments

  1. Michael

    The same sort of approach should be taken where, for medical reasons, you have been incapable of work for some or all of the period of unemployment.

    At the very least, you will need to provide a letter from your GP. In cases of prolonged incapacity, a medical report will probably be necessary.

    A particularly rigourous approach needs to be taken if your employer was to blame for your incapacity.

    For example, in a discrimination case you may say that sexual harassment resulted in you being incapable of work because it has led to clinical depression. You will need medical evidence to show, both that you suffered from clinical depression such that you were unable to work and that this was caused by the harassment. This will mean obtaining a medical report from a specialist.

  2. jvthorpe

    Can someone help me with this question:

    When does the duty to mitigate not apply? For example, if someone was dismissed (but can’t claim unfair dismissal) and they bring a claim for discrimination, what is the situation where, instead of seeking alternative employment to mitigate their financial loss, they make a reasoned decision to learn a new skill to improve their job prospects and/or look after a young child at home? In other words, after the dismissal they took stock and decided on a different, in their eyes, more productive path that required, let’s say, learning another language?

    Would a claimant who made this decision have their award reduced for failure to mitigate?

    • Naomi

      The duty to mitigate always applies – but it’s only a duty to make reasonable efforts to mitigate; and the burden is on the employer to prove that your approach is unreasonable: Wilding v British Telecom [2002] IRLR 524. So as long as you make rational decisions about what to do to mitigate your loss, the employer can’t complain. That could include retraining, or incurring the costs of setting up your own business – though the respondent may attack that decision by trying to show that there are jobs you could have got straight away that would have mitigated your loss much more efficiently.

      But bear in mind that the duty is a duty to mitigate your financial loss – so an employment tribunal won’t expect the employer to fund a lifestyle change or a decision to ‘down-shift’ – or even a decision to pursue the more interesting but higher risk career that you’d always dreamed of. That may be a perfectly reasonable decision in itself, but it’s not mitigation of your financial loss: it’s a decision to do something else instead of mitigating your financial loss.

      (I tend to write ‘you’ to keep it simple. As always, it’s a general ‘you’ – this response, like everything else on this blog, is not to be regarded as individual legal advice.)

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