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  1. What is the duty to mitigate loss?
  2. When does the duty to mitigate loss arise?
  3. What does “reasonable” mean in these circumstances?
  4. How should the Tribunal deal with mitigation?
  5. How can I prove that I’ve mitigated my loss?

What is the duty to mitigate loss?

In unfair dismissal cases the person who has been (unfairly) dismissed (“the Claimant”) has a duty to mitigate their losses after they are dismissed. This means that they are obliged to try and find other work as soon as reasonably possible so as to decrease their losses. Dismissed employees should therefore try and obtain new employment as soon as possible after their dismissal. This doesn’t mean that the Claimant will be penalised if they don’t find a job but it does mean that they will be penalised by the Employment Tribunal if they don’t make a reasonable effort to find a job.

When does the duty to mitigate loss arise?

The duty to mitigate loss arises when the employee is dismissed. An unreasonable failure to comply with an order for reinstatement or reengagement will therefore be deemed a failure to mitigate. Note, however, that a simple failure to comply with such an order will be a failure to mitigate – only an “unreasonable” failure. Further, the duty to mitigate losses doesn’t arise during the notice period but only after termination (you’re still employed during the notice period).

What does reasonable mean in these circumstances?

The employee must take reasonable steps to find new employment. What is reasonable depends on the facts. The circumstances of the particular employee must be taken into account, so the test changes into one a more subjective one – has the particular employee possessing the characteristics that they do taken reasonable steps to find alternative employment?

The duty to mitigate is generally held to have been breached if the employee refuses to, for example, accept a job with lower wages or refuses to accept a job because it pays less than their unemployment benefit. Further, the acceptance of a job which is very much lower paid than their previous job may be deemed to be a failure to mitigate. The Employment Tribunal will look at the conduct and the intentions of the employee to determine whether their conduct has been reasonable.

How should the Tribunal deal with mitigation?

The Tribunal should look at the employee’s circumstances at every stage since they were dismissed from their job and consider whether they have acted unreasonably at any particular stage. For example, if the employee has made reasonable efforts to find new employment for two months after his job but stops looking for a job after that then the Employment Tribunal must look at a failure to mitigate loss from the beginning of the period after the initial two months. The Employment Tribunal will determine what the employee would have been earning if he’d found a job after those two months and use this to calculate the decrease in compensation due to the failure to mitigate.

What the Employment Tribunal should not do is apply a “broad brush” approach and reduce the whole compensatory award by a percentage.

Redmans’ specialist unfair dismissal solicitors represent both employees and employers in the Employment Tribunal

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Richard O

Chris at Redmans is my go-to legal expert when it comes to employee-related matters. His depth of knowledge, experience and considered approach to problems and their solutions is highly valuable. I cannot recommend Redmans highly enough.

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Redmans handled my settlement with my employer quickly, decisively and to a standard that I was very happy with. I would in similar circumstances contract them again

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Clear, prompt, effective support from Chris which has been very much appreciated. Thank you again.

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Anonymous

I would highly recommend Redmans Solicitors, the team were very friendly and my case was dealt with professionally and efficiently. Thank you!

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Anonymous

My case was relatively straight-forward. But even so, working with Redmans was easy, quick, professional & clear. Many thanks

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Anonymous

The team were very helpful and answered all my questions regarding my redundancy. Initially I had a call with one of the representatives who escalated my request to a suitable employment solicitor. We arranged a call to discuss the settlement and she helped answer all my questions. We then mainly contacted through email which helped resolve the settlement quickly and convently. Thanks for all the help.

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Djaouida T

You have good communication.

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Anonymous

Fast and professional. A highly recommended company for employment related issues.

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Anonymous

Very professional service.

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I was very grateful for Redmans to treat my case with respect and discretion. At the time, I was very new to London and it was meaningful to have someone on my side and win the case for me. Without any doubt, I would definitely recommend Redmans Solicitors to anyone who is in need of it.

Posted 9 months ago

Jake L

Chris is very professional and calm. Very attentive and patient, been a positive experience having Chris represent me, and would recommend him.

Posted 11 months ago

Anonymous

Excellent service. It was a pleasure to work with Chris H, who is brilliant at what he does and very efficient. Their Senior Associate Rana T. is also very knowledgeable and resolves any queries speedily and efficiently. My issue could unfortunately not be resolved, but that was due to my employer and not the firm. Redmans however did all they could. I would definitely recommend them.

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Anonymous

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Very helpful, efficient service.

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Anonymous

I am very lucky that I worked with Mr. Chris Hadrill and he managed my case very progressively with an analytical approach and trustfully. Of course with a very positive result. I strongly recommend Mr. Hadrill to any one seeking for a successful result from a highly qualified solicitor.

Posted 11 months ago