Comments on: Mitigation http://etclaims.co.uk/2007/12/mitigation/ tactics & precedents Tue, 22 May 2012 10:48:51 +0000 hourly 1 http://wordpress.org/?v=3.1.4 By: Naomi http://etclaims.co.uk/2007/12/mitigation/comment-page-1/#comment-5671 Naomi Fri, 18 May 2012 07:09:11 +0000 http://etclaims.co.uk/?p=143#comment-5671 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 <em>financial </em>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.) 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.)

]]> By: jvthorpe http://etclaims.co.uk/2007/12/mitigation/comment-page-1/#comment-5666 jvthorpe Thu, 17 May 2012 18:23:43 +0000 http://etclaims.co.uk/?p=143#comment-5666 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? 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?

]]> By: Employment Law Manchester http://etclaims.co.uk/2007/12/mitigation/comment-page-1/#comment-4108 Employment Law Manchester Sat, 26 Feb 2011 14:52:20 +0000 http://etclaims.co.uk/?p=143#comment-4108 Nice article. A big mistake that Claimants usually do is to not keep an accurate record of their job search. They think its acceptable to sit at home and rack up time off. If they cant prove, and show evidence of mitigation then the Employers representative will take them to pieces during the remedy hearing. <a>Employment Law Manchester</a> Nice article.

A big mistake that Claimants usually do is to not keep an accurate record of their job search. They think its acceptable to sit at home and rack up time off. If they cant prove, and show evidence of mitigation then the Employers representative will take them to pieces during the remedy hearing.

Employment Law Manchester

]]> By: Michael http://etclaims.co.uk/2007/12/mitigation/comment-page-1/#comment-999 Michael Tue, 18 Dec 2007 12:38:24 +0000 http://etclaims.co.uk/?p=143#comment-999 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. 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.

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