United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MRS GEORGINA PORRES Representative National Association of Citizens Advice Bureaux The Development Centre Coxwell Avenue Wolverhampton Science Park Wolverhampton WV10 9RT
For the Respondents	RESPONDENT DEBARRED FROM TAKING PART IN THIS APPEAL

SUMMARY

Burden of proof – see mitigation of loss.


 


HER HONOUR JUDGE WAKEFIELD:

1. This is an appeal by Miss Clare Morris against that part of a decision made by an Employment Tribunal sitting at Brighton on 22 March 2004, by which her compensatory award for unfair dismissal was quantified at 4 weeks' loss of earnings. The background facts for the purposes of this appeal hearing can be briefly set out.
2. The appellant was employed by the respondent, Chrome Clothing Limited, from 11 May 2002 until 1 August 2003 as a shop assistant. On that latter date she was summarily dismissed, unfairly, as the Employment Tribunal found.
3. In the ensuing 8 months she was unemployed, having in that period, applied for 16 jobs.
4. There was no appearance by the respondent at the Employment Tribunal, but there was, before the panel, a statement in the form of a letter from a director of the respondent, Mr Billinghurst. That letter did not raise any issues as to failure by the appellant to mitigate her loss, although, in general terms, it challenged the veracity of some matters in the appellant's Witness Statement.
5. Having set out the facts and quoted some parts of the relevant statute, the Employment Rights Act 1996, in fact, quoted inaccurately in terms of section 123(4), the Employment Tribunal found that the respondent had not shown what was the reason for the dismissal, and, therefore, that it was unfair.
6. They then continued in their paragraphs 26 to 30 as follows:-

"A dismissed employee has a duty to take reasonable steps to mitigate their loss. The duty is one of reasonableness and is not absolute. It is for the employee to establish that she has taken reasonable steps to mitigate and it is for the employer to prove, once the employee has established steps to mitigate, that the duty has not been discharged.

The wording of S123 is that "the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under common law".

Questions relating to the duty of a dismissed employee to mitigate their loss are questions of fact for the Tribunal to determine. The Tribunal must not, however, be too stringent in our expectations.

The Applicant had found some part time work caring for two children and further part time work at a residential care home.

Doing the best we can from the evidence before us and taking into account the locality, the type of work the Applicant had been doing, and the fact that Christmas fell not many months after her dismissal, we consider that had the Applicant made reasonable efforts to find work then she should have been able to find alternative employment within 4 weeks."

7. By the Notice of Appeal it said that the Employment Tribunal thereby misdirected itself on the burden of proof as regards the duty to mitigate loss. There are other grounds also set out in that Notice but since we are satisfied that the appeal must be allowed on this first ground, we do not need to address the others.
8. It is clear that when one party, the employer, seeks to allege that the other, the employee, has failed to mitigate a loss, the burden of proof lies on the party making the assertion to prove such failure, see Bessenden Properties Ltd v Corness [1974] IRLR 338.

What the employer has to show in order to discharge that burden is that the employee has not acted reasonably.

9. In the present case there was no assertion put forward by the employer that the appellant had failed to mitigate her loss. Whilst we accept from what has been said in the case of Fyfe v Scientific Furnishings Ltd [1989] IRLR 330, that it is open to the Employment Tribunal to raise the issue of failing to mitigate loss, the burden of showing that there has been such failure then falls on the respondent. We are satisfied that the Employment Tribunal here in their paragraph 26 as I have already quoted, applied the wrong test.
10. The appeal must therefore be allowed and the decision as regards the amount of the compensatory award is set aside and that aspect only of the complaint is remitted to be determined by a differently constituted Employment Tribunal.