Mrs Harrington was employed by Hilco Capital Limited. She successfully claimed that she had been unfairly dismissed for whistleblowing. At a remedy hearing, she explained that she had not looked for or applied for any jobs since being dismissed. She said that this was partly because any such application would have been pointless, because any prospective employer would have stigmatised her as a whistle-blower, and not given her a job. The tribunal found that, on that basis, her failure to apply for any jobs did not amount to an unreasonable failure to mitigate her loss up to the date of the liability decision.
Hilco appealed to the EAT, and its appeal was upheld. The EAT held that the tribunal had erred in making this decision in the absence of any evidence either on the basis of experience arising from any actual job application, or a finding of fact by the tribunal which supported Mrs Harrington’s case about what would have happened had she made a job application.
What does this mean for employers?
This is a helpful reminder that former employees need to provide some evidence when maintaining they have been unable to mitigate their loss. It is not sufficient simply to assert this. On the flip side, employers who wish to run arguments that an employee has failed to mitigate their loss will also wish to gather their own evidence to prove this, such as adverts for jobs which a claimant could and should have been applied for to mitigate their loss.
