Mitigating loss in an employment tribunal – a guide for claimants
Something claimants often don’t appreciate is that they have a duty to mitigate their losses in an employment claim. Mitigation means taking action to reduce your losses. The easiest way to reduce your loss is to get another job. Failing to mitigate creates a situation where it is possible to ‘win’ your case but you might end up with little or no compensation.
It is for the employer to prove that the claimant has not made ‘reasonable efforts’ to mitigate their loss. If a claimant doesn’t have any evidence to counter this claim the tribunal is likley to agree with the employer and will reduce the compensation award.
Gather evidence of mitigation
In most cases, the longer you are out of work, the more you will have to prove. Finding a job within 3 or 4 months of being dismissed will make it unlikely the tribunal will agree that you have not done enough to mitigate your losses. 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 from the tribunal.
Claimants should collect evidence of all your efforts to mitigate your loss. Having evidence will make it harder for a tribunal to agree with an employer that your compensation should be reduced. We suggest that doing some or all of the following will help a claimant to show they have made ‘reasonable efforts’ :-
- Keep a diary of your job search. Aim to put something into your diary every day
- Write down every time you look for jobs online, visit a Job centre, read job pages in the newspaper, or even if you are given a referral to call someone who might be hiring.
- Note down any reasons why you couldn’t take any steps to look for work (eg. On holiday for a week).
- Print out of all online jobs you apply for – you don’t always get a reply from the recruiter and by the time of the tribunal that job might not be available online anymore
- Hold onto a copy of every application you submit, every invitation to interview and every rejection letter you receive.
- Save copies of the cost of your job search – for instance the cost of printing your CV, and keep train or bus tickets if you attend an interview
How can I mitigate my losses if I am not fit to work?
The same sort of rigorous approach must also be taken where a Claimant cannot work for medical reasons. For instance, if you suffer from clinical depression, or some other ailment which prevents you from working, you will need medical evidence to show this. With this in mind, we advise Claimants to:-
- Make regular visits to your GP,
- List all medical appointments attended – GP, hospital, physio, psychiatric, counselling or other medical appointment
- Retain copies of letters and reports from your appointments