Mitigating loss in age discrimination cases

The recent Employment Appeal Tribunal (EAT) decision in Edward v Tavistock and Portman NHS Foundation Trust [2023] EAT 33 has been a useful reminder that the burden of proving that a Claimant has acted unreasonably in failing to mitigate their losses is on the Respondent, the Claimant does not have to show that what they did was reasonable. If a Claimant is found to have been unreasonable, the tribunal will consider what steps should have been taken, when they would have likely resulted in alternative income and how much that income would have been, and award compensation accordingly (as set out in Cooper Contracting Ltd. v Lindsay [2015] EAT 184). 

But, for those Claimants who have spent their entire careers specialising in a skill, profession or in a specified role, how far does the tribunal expect them to go to find alternative employment to mitigate their loss?

Recent cases

The Employment Tribunal have recently looked at this question in the cases of Mr C Gregory v Petro Trace Ltd ET Case No.3304188/2022 and Mr M Bandura v Mr M Fernandez ET Case No. 2305466/2019.  

In Petro, Mr Gregory began working with Petro Trace as a geophysicist since September 2017. Mr Gregory was an experienced geophysicist, having worked in the industry since leaving university. In August 2021, the Respondent decided to terminate Mr Gregory’s employment in order to cut costs, referring to him as “a pensioner” and “not a young person”.  Mr Gregory was informed that he was being made redundant and told his employment would terminate in September 2021, although he continued to work until mid-November but was summarily dismissed after questing if he was being singled out due to his age. 

Mr Gregory began looking for alternative roles in September 2021 and applied to 74 roles between then and April 2023, including roles abroad and junior to his position with the Respondent. Mr Gregory, however, was offered only three interviews and was unsuccessful in each. In December 2022, he started a role working 12 hours a week at World Duty Free at Gatwick Airport. He also completed a business administration course and a “restart” programme run by Allen & Overy in an attempt to transfer his skills. The Respondent argued that after 6 months of unemployment, Mr Gregory should have taken a lower paid role in the industry and then moved up. 

The tribunal however found that Mr Gregory had made strenuous efforts to find alternative work and that it was not unreasonable for him to hold out for an opportunity commensurate with his skills and experience. Further, they found that it was reasonable for him to restrict his hours to part time at World Duty Free so that he could continue to find a role commensurate with his experience. It was also reasonable that he embarks on further study or training while he looks for an alternative role. The tribunal awarded full loss of earnings up to the date of planned retirement. 

In Bandura, similarly, the Claimant had been a butcher for over 50 years at the time of his dismissal and employed by the Respondent for over 19 years. In July 2019, Mr Bandura spent three nights in hospital but despite being provided with a full bill of health, was never permitted to return to work. Instead, the Respondent hired a new, younger butcher and sent Mr Bandura P45 in October 2019 and told that he was retiring. 

When considering remedy, the Respondent argued that Mr Bandura had decided to retire after losing his job and highlighted the few attempts (calls to two local butcher shops) that Mr Bandura had made to find alternative employment. The tribunal found that Mr Bandura had acted reasonably in limiting his search to butchery for the first 12 months of his unemployment trying to mitigate his loss. Being a butcher was his sole skill, he was unable to drive and the bus did not run at times that would allow him to get to work. The tribunal did not consider it unreasonable that Mr Bandura had not looked for alternative roles outside of butchery after the 12-month period owing to the Covid-19 pandemic and his geographical location. 

What to take away

Whilst these decisions are not binding, what they make clear is that although Claimants are expected to mitigate their losses, there is no expectation by the tribunal that they take the first job that comes their way, particularly where they have years of service in a particular expertise.  However, Claimants should be wary that where they have been unemployed for a significant period of time, the tribunal may expect there to be some attempt to re-train or find temporary work whilst they continue their search. 

Farore Law is a leading boutique law firm that has a wealth of experience in advising the victims of age discrimination to seek justice. We are well placed to provide appropriate advice regarding making an allegation through your company’s internal grievance process, seeking a settlement agreement and commencing litigation. Our lawyers frequently advise senior executives and other individuals who have been subjected to age discrimination and recognise the importance of anonymity and reputation management.

Please contact us if you require legal advice after being subjected to age discrimination.