Cooper Contracting Ltd v Lindsey: EAT gives guidance on mitigating loss

Cooper Contracting Ltd v Lindsey: EAT gives guidance on mitigating loss

This case is really about principles that apply as part of the Tribunal process. But it’s useful to look at by way of being an explanation as to what an employer might do in circumstances where the employment relationship has ended in acrimonious circumstances.

Mr Lindsey was a carpenter who worked for Cooper Contracting until December 2013 when, the Tribunal found, he was unfairly dismissed.

From dismissal onwards he chose not to seek alternative employment, but had been working on a self-employed basis.

Even though the employer was able to show the Tribunal that there were opportunities available for employed work at better money, the Tribunal allowed Mr Lindsey all of his losses up to the date of Tribunal and for three months into the future.

The employer appealed but the Employment Appeal Tribunal (EAT) agreed with the original Tribunal. Various important principles were set out as follows.

First, the burden of proof is on the wrongdoer – the employer. An individual doesn’t have to prove that he or she mitigated his or her loss.

The employer must prove that the Claimant acted unreasonably. One aspect of that evaluation will be the views and wishes of the Claimant.

Sometimes it will be reasonable for the employee to have taken a lower paid job, and the Tribunal must not be too critical of that decision.

Ultimately, it all comes back to the fact that if the employer is responsible for unlawfully putting him out of work in the first place then various unpalatable consequences are always going to potentially arise from that.

What this means for you

If you have a situation where you think you might be liable for a dismissal, it’s always worth doing your research from day one.

This includes checking local press and websites as well as any specialist trade publications.

The more information you can put before a Tribunal, the better your chances of persuading them there has been a failure to mitigate. Although this case is proof that you’ll need to work really hard to do that.

Having said that, evidence of failure to mitigate can, when served on the other side, pay dividends by way of forcing an early and more favourable settlement.

In short, it’s always worth doing but should be approached from day one and the research should be as comprehensive as possible.

Need advice? Get in touch today

Please call Ted Flanagan on 01482 324252.

Or email Ted here.

You can find out more about our Employment Law services here.

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