Konczak -v- BAE Systems (Operations) Ltd UKEAT/0498/11/DM
In this recent case the Employment Appeal Tribunal ("EAT") held that an employee's unreasonable refusal to accept an offer of settlement can amount to a failure to mitigate loss, however not in the particular circumstances of this case.
The Employment Tribunal ("Tribunal") awarded compensation of approximately £45,000 based on medical evidence which showed that Mrs Konczak's ("the Claimant") inability to work was caused by the on-going litigation. It also found she had refused a reasonable offer from the Respondent of £75,000 which she should have accepted. This was held to be a failure to mitigate her loss.
However, the EAT has held that the Tribunal's finding on mitigation of loss was impermissible on the facts of this case. The Tribunal had failed to explain why in refusing the offer of £75,000, the Claimant had acted so unreasonably as to have broken the chain of causation, particularly when the schedule of loss totalled nearly £500,000. The EAT stated that without "a wholly unreasonable refusal to countenance settlement...the Claimant was perfectly entitled to pursue her remedy".
The EAT also held that documents showing settlement negotiations by the Claimant, included by her in her bundle of documents for the Hearing were not privileged. The Tribunal was entitled to accept that the "(without prejudice) 'box had been opened by the Claimant'".
Please click here for the full judgment
Disclaimer
The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.
