The recent Employment Appeal Tribunal (EAT) case of Beijing Ton Ren Tang Ltd v Wang has highlighted the importance of taking all of an individual’s circumstances into account when deciding if they have acted reasonably in attempting to mitigate their loss after being dismissed.

Ms Wang was recruited from her native China to work in a health shop in London in 2001. In January 2008, she was unfairly dismissed from her position by her employer. When determining the amount of compensation Ms Wang was entitled to, the tribunal concluded that she would not have been able to keep her job beyond June 2008 due to the onset of tuberculosis.

Beijing argued that Ms Wang had failed to make any attempt to mitigate her loses and so her compensation should reflect this fact. The tribunal rejected this claim after taking into account Ms Wang’s individual circumstances, which included the facts that:

• She had been shocked by the manner in which she was dismissed. The way in which she had been treated by Beijing was bad enough to merit a 50% uplift in her compensation.
• She had been very isolated in the London Chinese community since she had arrived in the country in 2001.
• She spoke no English, and was unfamiliar with other parts of the country where some of the jobs Beijing claimed she could have taken were located.
• After her unfair dismissal, she was so short of funds that she had to borrow £30 from a company director to buy food - this lack of money in itself would have made it more difficult for her to search for a new job.

Beijing appealed on this point of mitigation and lost.

HHJ Peter Clark confirmed that mitigation is a question of fact, and that the employer must show that the dismissed employee has acted unreasonably in failing to mitigate any losses suffered as a result of their dismissal. In considering such cases, the tribunal must take into account the individual circumstances of the claimant.

The EAT found that Ms Wang had been left in an “unusual and vulnerable position” after her dismissal, and that, although she had done nothing to find new employment for 17 weeks, when all her unique circumstances were taken into account, she had not acted unreasonably.

Technorati Tags: Employment Appeal Tribunal, Loss Mitigation, Unfair Dismissal