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Mitigation of loss- what are the obligations on the parties? - Cooper Contracting Ltd v Lindsey

Napthens - January 14th 2016


Mr Lindsey was a carpenter who has been found to have been unfairly dismissed. He was awarded losses on the basis that although he had work in the form of pursuing work on a self employed basis, there was other better paid work “out there” on an employed basis. The Respondent had raised its grounds of appeal on the basis that the Tribunal had erred and not given adequate consideration to the fact the claimant has not reasonably mitigated his loss between his dismissal and the hearing.


The EAT clarified the legal approach to be taken when considering mitigation as:

  • The “wrong doer” has the burden of proof;
  • The Claimant must be shown to have acted “unreasonably” not “not reasonably”;
  • When considering “unreasonableness” this is to be considered in the context of the facts at hand. However, any assessment will of course be objective; and
  • The claimant should not be held to account as if on trial, as if the losses were their fault.

What does this mean for you and your business?

A failure to take a better paid job may not necessarily mean that the employee has failed to mitigate his/her loss. The obligation for a claimant to mitigate their losses, and whether this has been adhered to, is very much specific to the facts. Therefore, just because an ex employer has refused an offer of a role post your employment on the same or a better salary and has opted for a lower paid job and claimed the difference- is possible if justified on the facts.