In the vast majority of cases an employee who has issued proceedings at the employment tribunal whether for unfair dismissal, discrimination, equal pay or for making a protected disclosure (whistleblowing) will be seeking to recover financial compensation. A Claimant will usually be required to prepare a ‘Schedule of Loss’ and be required to disclose evidence of their losses.
Employment tribunals expect employees to demonstrate that they have mitigated their losses (attempted to reduce their losses). This means that the tribunal wants to see evidence that, if the employee has lost their job, that they have applied for alternative employment. The tribunal will also want medical evidence if the Claimant is claiming they are unable to work or are claiming ‘injury to feelings’. However, the burden of proof is actually on the employer – they are the ones who need to demonstrate that the Claimant has acted unreasonably in not mitigating their losses and if the Employer/Respondent does not put forward evidence to the tribunal about mitigation then the tribunal is not required to make a finding on it.
A Claimant may have a strong claim that will be difficult to defend – however a strong claim does not necessarily mean high levels of compensation being awarded. This is a useful point for both parties to remember. If you are defending a claim you should start, once you receive the ET1 or before if you believe the employee may bring a claim, to collate copies of suitable job adverts of jobs that the Claimant could have applied for. You can then disclose these as evidence to support that the Claimant hasn’t done enough to mitigate their losses (providing of course the Claimant didn’t apply for these jobs).
A lack of mitigation, or a Claimant who has quickly found new work and therefore has little in the way of financial losses, can be a useful tool when trying to negotiate a settlement of a claim.
If you are an employee, you should keep evidence of all job applications that you made along with evidence of any contact you have had with recruitment agents or any speculative applications you may have made. Claimants should claim benefits if unemployed and retain evidence of this. If you were/are too unwell to work, or you are claiming ‘injury to feelings’ consider obtaining a letter from your GP or any other medical professional who has treated you or better still an independent medical report to support this head of loss.
This article was created as general guidance. We have extensive experience in pursuing and defending employment tribunal claims and can help you advance arguments to increase compensation if you are an employee, or limit your exposure to significant findings of compensation if you are an employer.