Article 76(4) of the Employment Rights (Northern Ireland) Order 1996 places a duty upon a claimant to mitigate their losses following dismissal, for example, by making effort to obtain new employment or by claiming state benefits. An employee cannot recover compensation for any part of their loss(es) which could have been avoided by taking reasonable steps. If a claimant has mitigated their loss, the tribunal is entitled to make appropriate deductions from any compensation awarded.

Cooper Contracting Ltd v Lindsey UKEAT/0184/15 set out the following key principles that a tribunal should consider in relation to mitigation of losses:

• The employer bears the burden of demonstrating that the employee/claimant acted unreasonably in failing to mitigate their losses;
• The claimant does not need to show they acted reasonably in mitigating their losses; and
• If the employer fails to put forward evidence to the tribunal that the claimant has failed to mitigate their losses, the tribunal has no obligation to make a finding.

It is important to remember that the duty to mitigate arises only after the claimant’s dismissal has taken effect. This means, strictly speaking, refusal of an offer of employment made prior to the dismissal would not usually constitute a failure to mitigate.