Mr Justice Langstaff has given a useful summary of the relevant principles to be applied when considering whether a compensatory award should be reduced as a result of the Claimant’s failure to mitigate, in the recent case of Cooper Contracting Ltd -v- Lindsey 2015.

The case concerned a carpenter who was unfairly dismissed by his employer, and who decided subsequently to work as a self-employed jobbing tradesman, rather than seeking a position with a new employer. It was held that the Tribunal had been correct to decide that failure to mitigate had not been made out. The relevant principles are as follows:

  1. The burden of proof is on the wrongdoer.
  2. It is for the employer to provide evidence as to mitigation.
  3. What has to be proved is that the Claimant acted unreasonably (as opposed to the Claimant having to prove that he acted reasonably).
  4. There is a difference between acting reasonably and not acting unreasonably.
  5. What is reasonable or unreasonable is a matter of fact.
  6. The Claimant’s views and wishes are to be taken into account, but it is the Tribunal’s assessment of reasonableness that counts.
  7. The Tribunal is not to apply too demanding a standard to the victim, who is after all the victim of a wrong.
  8. The test may be summarised by saying that it is for the wrongdoer to show that the Claimant acted unreasonably in failing to mitigate.

Thus, the fact that it might have been perfectly reasonable for a Claimant to have taken on a better paid job does not necessarily satisfy the test - it must be shown that it was unreasonable for him not to have done so.