Employment law

Mitigation of loss

Wilding v British Telecommunications plc [2002] IRLR 524

The Court of Appeal set out the following principles as to whether a dismissed employee who has refused an offer of re-employment has failed in his duty to mitigate his loss:

- It is the duty of the employee to act as a reasonable person unaffected by the prospect of compensation from their former employer;

- The onus is on the former employer, as the wrongdoer, to show that the employee has failed in his duty to mitigate his loss by unreasonably refusing an offer of re-employment;

- The test of reasonableness is objective, based on the totality of the evidence;

- In applying that test, the circumstances in which the offer was made and refused, the attitude of the former employer, the way in which the employee has been treated and all the surrounding circumstances, including the employee's state of mind, should be taken into account;

- The court or tribunal must not be too stringent in its expectations of the injured party.

'All the circumstances' must inevitably be related to the individual conduct and circumstances of the particular applicant when faced with a choice whether or not to accept an offer of re-employment.

Lord Justice Sedley expressed the view that it is not enough for the wrongdoer to show that it would have been reasonable to take the steps that he has proposed.

He must show that it was unreasonable of the innocent party not to take them.

This reflects the fact that, if there is more than one reasonable response open to the injured party, the wrongdoer has no right to determine his choice of response.

Work-related stress

Young v Post Office [2002] IRLR 660

The Court of Appeal ruled that, where an employee has already suffered from psychiatric illness resulting from occupational stress, it is plainly foreseeable that there might be a recurrence if appropriate steps are not taken when the employee returns to work.

The employer owes the employee a duty to take such steps and to see that arrangements made are carried through.

In this case, arrangements were made to ensure that the claimant could return to work 'at his own pace'.

However, two weeks after his return, he was sent on a week-long residential course and within seven weeks he was back doing the same job which had originally caused him to suffer stress.

Promises that he would be visited regularly by members of management and that his capacity for work would be assessed were not kept.

Therefore, the employers were in breach of duty.

Furthermore, the claimant was not guilty of contributory negligence in failing to voice any concern about his ability to cope.

He was both conscientious and vulnerable and could not be blamed for doing his best to undertake the tasks which he understood were expected of him, especially when he had made complaints in the past which had not been heeded.

By Martin Edwards, Mace & Jones, Liverpool