A failure to apply for jobs was an unreasonable failure to mitigate loss


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The Employment Appeal Tribunal (EAT) has held in Hilco Capital Ltd v Harrington that an unfairly dismissed whistleblower's failure to apply for any jobs before a remedy hearing due to concerns that she would be stigmatised by future employers was not a reasonable failure to mitigate losses.

The claimant worked for Hilco, a financial services company. She was dismissed in 2017 and brought a successful claim for unfair dismissal and whistleblowing. Giving evidence at a remedy hearing she said that she had not sought new employment for fear of being stigmatised in the financial services industry as a result of her disclosures and the claim itself.

The tribunal did not reduce the compensatory award for an unreasonable failure to mitigate losses at the remedy hearing, accepting the claimant's concerns that it was pointless looking for jobs as future employers would stigmatise her as a whistleblower. However, the EAT held that the tribunal was wrong to accept these concerns without looking at any evidence to support them. As the claimant had failed to look or apply for any jobs at all it meant that the respondent had discharged the burden on it to show an unreasonable failure to mitigate loss. The case was remitted to the tribunal to decide if, in the light of any explanations put forward by the claimant and its own findings, the failure to apply for jobs was an unreasonable failure to mitigate losses.

Take note: The decision in Harrington reminds us of the importance of the employee's duty to mitigate their losses. A failure to make reasonable efforts to mitigate will result in the employee's compensatory award being reduced. It won't be possible to use fear of stigmatisation to justify a failure to mitigate. It would have been different if the claimant had applied for posts and found that she was being stigmatised, then there would have been no failure on her part to mitigate her losses.

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