Unfairly Dismissed? You Must Take Reasonable Steps to Mitigate Your Loss

Those who are unfairly dismissed are required to take reasonable steps to mitigate their financial loss, usually by hunting for a new job. The Employment Appeal Tribunal (EAT) made that point in the case of a woman who made not one application for fresh employment in the three years after she was sacked.

The woman, who worked for a financial services company, launched Employment Tribunal (ET) proceedings after she was dismissed, purportedly on grounds of redundancy. Following a liability hearing, she succeeded in her whistleblowing claim and her dismissal was ruled automatically unfair. A remedies hearing followed and her former employer was ordered to pay her more than £240,000 in compensation.

She accepted before the ET that she had not looked or applied for any jobs at all since her dismissal. As to why not, her case was, in part, that any such application would have been pointless because any prospective employer would have stigmatised her as a whistleblower and not given her a job.

The ET found that her decision not to embark on job hunting was reasonable during the period between her dismissal and three months after judgment was given following the liability hearing. On that basis, she was entitled to compensation in respect of 85 weeks’ loss of earnings and employment benefits.

Ruling on the employer’s challenge to the amount of her award, the EAT noted that whistleblowers are, unfortunately, sometimes stigmatised and struggle to find fresh employment. The same is true of other employees who gain an unfair reputation as troublemakers because they have litigated against former employers, even if their claims are entirely meritorious and legitimately pursued.

In upholding the appeal, however, the EAT noted that there was no evidence put forward specifically to support the woman’s assertion that, because of her whistleblowing claim, any application she made for a new job would inevitably have been fruitless. The ET made no findings of fact to support such a conclusion. The case was remitted to the same ET for fresh consideration.