Nowadays a lot of people search for jobs online. If you are doing this, you will need to make sure you can produce copies of the adverts and your application for the tribunal to show that you have made reasonable efforts to get another job (and thereby mitigate your loss).
Online adverts and applications can complicate this process, because it can seem as if you have a record when you don’t. For example, an email with a link to the advert on a website may seem to be a good record. But, six months later, when you’re preparing a mitigation bundle you may well find that the website has changed and there is no trace of the job or its details.
To be safe, make sure you have a full record of the advert yourself. The easiest and simplest way of doing this is to print it out there and then. Or to save it as a pdf.
A previous post on mitigation advises keeping careful track of the efforts you have made to find work if your claim is about dismissal.
These efforts need to be clearly set out in a witness statement that explains in detail what you have done to look for work and, if you are having any particular difficulty getting a job, why you think that is.
Your witness statement might look something like this.
Or more specifically, what you ask for.
A previous post advised that a request for reinstatement or re-engagement can be a powerful negotiating lever, because as a rule employers really hate the idea of taking a dismissed employee back. This is true, but you do also need to have thought through the possible consequences if your former does offer to re-employ you.
Obviously if this is what you really wanted, that’s fine. But if you were bluffing in the hope that an application for re-employment would scare your former employer into increasing its settlement offer, and the truth is you can’t think of anything you’d hate worse than going back to work for them, you’ve painted yourself into a bit of a corner. If you change your mind now and say ‘on second thoughts I just want compensation,’ your employer will point out that it was open to you to mitigate your loss 100% from whenever they offered you your job back, and the likelihood is that you won’t get a penny in compensation for future loss.
There’s quite a common belief that employment tribunals don’t award compensation for future loss beyond 3 or 6 months.
Other things being equal, this isn’t a bad rule of thumb. If there’s no good reason to suppose that you are going to have particular difficulty getting another job, or that even if you get another job it will be at a much lower salary than your old job, but you haven’t in fact got another job by the time of the hearing, the tribunal hasn’t got very much to go on. And that is precisely where a rule of thumb comes in handy: it helps you out when you don’t know what to do.
But the other things being equal bit is important. Sometimes other things are not at all equal. If you really do think that there is some reason why you are at a serious disadvantage in the labour market, and your career is not likely to be back on its old track for years if ever, then tell the tribunal all about it and ask for compensation for the whole of your loss.
You will be much better placed to make good a claim of this nature if you have found another job by the time of the hearing. This is because that fact in itself is a powerful piece of evidence about your strength in the labour market and your likely future earnings. Where a claimant has not yet got another job at the time of the hearing, tribunals often assume – perhaps unrealistically – that when they do get another job, they will match their old earnings so their loss will cease at that point. So they make a guess as to how long that will be – and the guess often is 3 or 6 months – and award lost earnings for that period only.
If on the other hand you’ve got another job on significantly less pay at the time of the hearing, the tribunal has much more information to go on. The fact that you have accepted a lower-paid job is a pretty convincing demonstration that you can’t do better at the moment: certainly the tribunal will take a lot of convincing that you’ve deliberately taken a badly paid job in order to inflate your claim.
You can also make more confident and better-founded predictions about the future once you have found another job. You may be in a position to say, for example, that you intend to stay in this job for at least 2 years because you don’t want a fragmented CV; or that although this job isn’t very well paid at the moment, it is sensible for you to stay in it because it is with a large and copper-bottomed employer and you think your chances of promotion in between 3 and 5 years are good; or that you have been lucky to get a job with hours that make it possible for you to take a part-time college course to retrain for a change of career that will allow you to earn better in future – but not for another 5 years.
If you have plans or expectations of this sort, don’t limit yourself to claiming a few months’ future loss. It is important to be realistic, of course, so don’t – either – make wild claims that you can’t support with evidence.
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.
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.
If you suspect that your former employer is making it harder for you to get a new job by giving you an unfair reference, you can make a subject access request under the Data Protection Act for a copy of the reference. Straightforward guidance on how to do this is available from the Information Commissioner’s Office. If there is argument after you have won your case about whether you have done enough to mitigate your loss, it will assist you if you can produce copies of any poor references you have discovered by this means.