EWJ 60 April 2025 web - Journal - Page 78
Respondents - Don’t Forget
About Mitigation Evidence
by Katherine Anderson - 3PB Barristers
The scenario is not uncommon – the Claimant has
been dismissed by the Respondent and has brought a
claim in that regard, the trial is listed to decide liability and remedy, the bundle and witness statements
have been prepared for trial, the Claimant has produced evidence of his or her unsuccessful searches
for new employment – and there is no mitigation
evidence from the Respondent.
unreasonably, even if the employee’s evidence of job
searches appears to be sparse.
This means that Respondents will usually be well
advised to start thinking about mitigation evidence as
soon as they are put on notice of a dismissal claim. The
risk in failing to do so is particularly high where the
Claimant was a high earner, or in discrimination
claims and claims for automatically unfair dismissal
where damages are uncapped.
Many Respondent employers proceed to trial on the
mistaken assumption that it is for the Claimant to
prove the financial loss they have suffered as a consequence of their dismissal and that it is for the Claimant
to prove that they have taken reasonable steps to find
another job. That is not what the law says. It is well established law that the onus of showing a failure to mitigate lies on the Respondent employer: see for
example Fyfe v Scientific Furnishings Ltd 1989 ICR 648,
EAT or Cooper Contracting Ltd v Lindsey 2015 ICR D3,
EAT. This means that if the Respondent wants the
question of mitigation to be considered by the tribunal, the Respondent has to raise it, and it is for the
Respondent to prove that the Claimant has acted unreasonably (see Cooper Contracting Ltd v Lindsey 2015
ICR D3, EAT). Moreover, to discharge the burden of
proving that the Claimant acted unreasonably it is not
enough for a Respondent to show that there were
other reasonable steps the Claimant could have taken
to secure new employment which he or she did not
take (e.g. apply for this vacancy or that). The Respondent must show that the Claimant acted unreasonably
in not taking such steps (see Wilding v British Telecommunications plc 2002 ICR 1079, CA per Potter LJ). In
Singh v Glass Express Midlands Ltd 2018 ICR D15, EAT
the Respondent submitted that it had discharged that
burden through cross-examination of the Claimant,
thus establishing that the Claimant had no valid reason why he was not working full-time. HHJ Eady
held, at [27], that even if it were possible for a Respondent to discharge the burden in this way, the tribunal needed to be clear that the burden remained
on the Respondent throughout, and its reasoning
needed to demonstrate that it had not confused what
might have been the failure to take reasonable steps by
the Claimant with the establishment by the Respondent that the Claimant had acted unreasonably in
mitigating his losses; the two questions are not
automatically the same.
Many Respondent employers may have, internally,
good knowledge of the job market in their sector.
They will know where and how they advertise and recruit, and they may know about where and how other
businesses in their sector in their area do or are likely
to do so. They may know the principal websites where
jobs in their sector and area are usually advertised or
the main recruitment agencies for their area and sector. They may know if there is currently an employer’s
market or an employee’s market, and why. Thus, they
may be able to start collecting evidence at an early
stage which is relevant to mitigation and would be well
advised to do so. They may also be able to provide relevant witness evidence, though not necessarily from
the same individuals they intend to call as witnesses in
relation to the liability issues. Where Respondents do
not have this sort of knowledge themselves, they
should consider obtaining it from recruitment agencies or consultants who may also be able to provide evidence on typical remuneration packages within the
Claimant’s area of employment and geographical
area. This type of evidence may also be relevant where
the Claimant is claiming for future financial loss, going
towards showing the likelihood of the Claimant being
able to mitigate his or her losses in the future.
In summary, Respondents should not, in their focus
on winning the case on liability, overlook the need for
Respondent mitigation evidence if they should lose.
This document is not intended to constitute and
should not be used as a substitute for legal advice on
any specific matter. No liability for the accuracy of the
content of this document, or the consequences of relying on it, is assumed by the author. If you seek further information, please contact the 3PB clerking
team.
Author
Katherine Anderson
Barrister
3PB Barristers
0330 332 2633
katherine.anderson@3pb.co.uk
3pb.co.uk
If a Respondent establishes, with evidence, that there
were many other jobs available, the Respondent can
ask the tribunal to find that the Claimant acted unreasonably in not having searched and applied for
them. However, if the Respondent adduces no evidence at all on that question, it will be hard for the tribunal to conclude that the Claimant acted
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APRIL 2025
