Employment Appeal Tribunal Upholds Unfair Dismissal Ruling on Mitigation of Losses
The Employment Appeal Tribunal has dismissed both an employer's appeal and an employee's cross-appeal regarding the mitigation of losses following an unfair dismissal.
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Unfair Dismissal Ruling Affirmed on Mitigation of Losses
The Employment Appeal Tribunal (EAT) has dismissed an appeal by MacAusland Design Limited and a cross-appeal by Ms A Portosi, upholding a previous Employment Judge's decision regarding the mitigation of losses following an unfair dismissal. The case, MacAusland Design Ltd v Portosi EAT 51, centred on whether Ms Portosi had adequately mitigated her financial losses after being unfairly dismissed.
Key Issues and Tribunal Findings
The central issue revolved around Ms Portosi's efforts to find alternative employment after her dismissal on 30 September 2020. The employer argued that Ms Portosi had unreasonably failed to pursue a potential job opportunity with a Mr Goldreich in August 2021, which could have led to a higher income than her subsequent role. The Employment Judge had initially found that while Ms Portosi had taken reasonable steps to mitigate her losses, she could and should have pursued the opportunities with Mr Goldreich. However, the judge assessed that the financial impact of this failure would only crystallise later, affecting future rather than past losses.
The EAT considered whether the Employment Judge had erred in law by not calculating past losses to reflect the potential earnings from the Goldreich opportunity earlier. Ms Portosi, conversely, argued that the judge had erred by deeming her decision not to pursue the Goldreich opportunity a "personal choice" without adequately considering her specific circumstances, including her relocation to Italy to care for her mother following her father's death and her commitment to a fixed-term contract there.
Tribunal's Decision
In its judgment, the EAT found that the Employment Judge did not err in her analysis of Ms Portosi's attempts to mitigate her losses. Judge Keith stated that the judge was entitled to assess losses on a later date, after a period where Ms Portosi had given assurances to her new employer. The tribunal emphasized that the burden of proof lay with the employer to demonstrate that the employee acted unreasonably, not the other way around.
Both the appeal and cross-appeal were dismissed. The EAT concluded that the Employment Judge had considered Ms Portosi's personal circumstances and made an evaluative judgment that was open to her. The ruling confirmed that the claimant had not failed to mitigate her losses in a way that would alter the original remedy awarded. The EAT found the original judge's conclusions were not perverse and that the employer had not demonstrated a legal error in the assessment of losses.
Read the entire judgment here: MacAusland Design Ltd v Portosi EAT 51
