How to Maximise Your Unfair Dismissal Compensation?
There is a common misconception that because an employee has been unfairly dismissed, they will automatically receive compensation. Read this important post for why that is not necessarily true, and how you can ensure the best financial result if you win your claim…
Let us assume all went well in the Employment Tribunal and you have won your claim for Unfair Dismissal. Either that same day, or perhaps in the coming weeks or months, the Employment Tribunal will hear evidence on what is termed “remedy”. In cases of Unfair Dismissal, the remedy includes compensation, for claims of Discrimination this can also include recommendations.
In dealing with compensation the Employment Tribunal will consider making a basic award and a compensatory award. I have previously posted about how the basic and compensatory award are calculated and details can be found by clicking this link – https://lincslaw.co.uk/blog/what-is-your-claim-really-worth/
Dealing specifically with the compensatory award, it is incredibly important to bear in mind that the Employment Rights 1996 (section 123 (4) requires employees (termed claimants in the Employment Tribunal) to mitigate their loss. This means showing the Employment Tribunal they have done all they can to keep their losses to a minimum by looking for other jobs and applying for any available state benefits (such as Job Seekers Allowance etc…).
The Employment Tribunal is obliged to consider the question of mitigation in all cases. What steps it is reasonable for the claimant to take will then be a question of fact for the Employment Tribunal to decide. Although the test imposed on the claimant should not be overly burdensome, the obligation is clear and so I am very clear in my advice to clients that they need to keep evidence of all attempts to keep their losses to a minimum. If they fail to show the Employment Tribunal they did all they could to keep their losses to a minimum, they could find their compensation is significantly capped.
What are the Common Pitfalls?
Failure to mitigate is likely to arise in several different circumstances and I have summarised these below:-
- Probably the most common argument raised by employers is that the claimant has not made sufficient efforts to look for new work. As I have said above, it is therefore really important that claimants keep documentary evidence (such as job adverts, application forms, letters and emails, online applications etc) to show the steps they have taken to find new work. All this evidence will be used in what is termed a remedies bundle to show they did all they could to find new work and thus, even if they are unsuccessful in finding new work quickly, the Employment Tribunal can still know they did their best and award accordingly.
- Another common argument raised by employers is that the claimant failed to keep their losses to a minimum by not appealing against the decision to dismiss them. This argument generally fails as a standalone point but that said, a failure to appeal can reduce the compensatory award if the failure amounted to an unreasonable breach of the ACAS Code.
- Finally, if a claimant refuses an offer of work, such as reinstatement or re-engagement by the previous employer, or an offer of new employment from someone else, that refusal must be reasonable in all the circumstances. If it is not, the claimant will be at risk of a finding they have failed to mitigate their loss and any compensation that might have been due to them could cease from the point of the offer.
Clearly each issue is different and if you are at all unsure you should obtain specialist employment law advice.
Lincs Law Employment Solicitors Can Help You
If you need help preparing for an Employment Tribunal Hearing, or simply preparing your Schedule of Losses and supporting evidence, don’t hesitate to call us 01522 440512 for an initial free consultation. Alternatively, visit https://lincslaw.co.uk/services/employees/employment-tribunal-claims/ for more information about how we can help with Employment Tribunal representation.
Sophie Goodwill, Director, Specialist Employment Solicitor
Tags: compensation compensation at the employment tribunal compensation claim Compensatory Award Employment Law Advice Employment Law Specialists employment solicitor employment tribunal award employment tribunal claim Mitigation of Loss Remedy Hearing