Deductions from compensation awards, & mitigation

southerly

I have my case for unfair dismissal coming up in February, and have just had the negotiating via ACAS, my employer has not yet offered enough to make me want to settle. I am now on jobseekers allowance, and I know that would be deducted from any compensation I may be awarded by the tribunal. For the first few months I was ill, and am claiming employment and support allowance, which I think is the old incapacity benefit. Would this also be deducted from any compensation? It would seem quite reasonable to me to deduct it, but any legal books I have looked at, which were not up to date, said that this point was not established by case law. I wondered if it is now?

Also I know I have to show proof of mitigation, that I am actively looking for work. As so much is done online now, how much should I actually print off before the hearing. Where a job advert asks you to email your cv should I print off every such email I send? Also I do a lot of searching of jobs websites, which often results in no jobs that I could apply for. Is it enough just to keep a record of which website I searched and on which date?

Uncertain

southerly wrote: »

For the first few months I was ill, and am claiming employment and support allowance, which I think is the old incapacity benefit. Would this also be deducted from any compensation?

I'm 95% sure it would not be deducted at least for contribution based ESA . My reasoning is that it is possible to receive ESA (contribution based) even whilst your employer is still paying you if you are lucky enough to have a job with very extensive sick pay.

As you are in touch with a higher level person at ACAS I would try asking them. I wouldn't suggest this if it were just a case of phoning their "help" line as they can sometime give out some horribly wrong information!

zzzLazyDaisy

The calculation is of actual losses. If the employer only pays SSP, then it would be reasonable for it to argue that OP sustained no loss during the period that he was unable to work through sickness, as he would not have been earning during that time. Unless, that is, the illness that prevented him from working can be directly related to the way in which he was treated by the employer.

So a period of stress related illness caused by the way the employer dealt with the dismissal (assuming the GP was willing to confirm this) would be treated differently from, say, a football injury.

southerly

Thanks both of you for those knowledgeable replies. Employer used to pay full pay for first 3 months off sick, and we had several people off for that long. My illness was pretty much caused by the redundancy and how it was handled. Was not off sick at all for the 3 1/2 years in my job!
Person from ACAS was very helpful, so I will try asking his opinion. It's just really so I can get an idea of what compensation I might get, and compare to any offers of settlement.

Now I need a job, any job! to be able to calculate loss of wages into the future, as the job I lost was well paid for what it was.

southerly

Oh nearly forgot my next question, about compensation for loss of pay into the future, if you get a lower paid job than the one you lost. If I was to take a part time job, I would assume that the pay for it would be multiplied up to the full time equivalent for the calculations, as it would not be my ex employers fault if I take a part time job?

jazzyman01

Are you saying that your job was made redundant? I ask because you refer to it in post 4. If that is the case did you not get redundancy payment?

Jarndyce

southerly wrote: »

Also I know I have to show proof of mitigation, that I am actively looking for work. As so much is done online now, how much should I actually print off before the hearing. Where a job advert asks you to email your cv should I print off every such email I send? Also I do a lot of searching of jobs websites, which often results in no jobs that I could apply for. Is it enough just to keep a record of which website I searched and on which date?

On the mitigation evidence point, a record of websites searched, applications made etc is a good start, especially if it is obviously not just written up the night before the hearing.

If you have a few emails from jobs where you got further than just an initial enquiry, so much the better, but if you are submitting evidence on oath then the respondent would have to be able to knock it down, and unless they can show that you are a habitual liar, in which case you are doomed anyway, you should be fine with the written record.