1. Introduction

Two recent decisions — one of the WRC and one of the Labour Court — have re-examined the requirements imposed on dismissed employees to mitigate their loss under Section 7 of the Unfair Dismissals Acts 1977 to 2015. The WRC decision in Conor Gilligan v Derrin Group Management Limited (ADJ-00058189) and the parallel Labour Court determination in Accountancy & Business College v Anor each illustrate the substantive nature of the duty and the practical evidence required to demonstrate compliance with it.

Together, the decisions clarify the boundary between reasonable mitigation efforts — which preserve the employee’s entitlement to compensation — and inadequate efforts — which may result in a reduction of the award. They are essential reading for practitioners advising on quantum in unfair dismissal cases.

2. Legislation and Case Law

Section 7(2)(c) of the Unfair Dismissals Act 1977 requires the Adjudication Officer to have regard, when determining the amount of compensation, to “the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid”. The provision codifies the common law duty on a wrongfully dismissed employee to take reasonable steps to mitigate financial loss.

The leading authority on the substance of the duty is Sheehan v Continental Administration Co. Ltd (UD858/1999), in which the Employment Appeals Tribunal held that “a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to put names down on a register or look around for jobs; he should be actively seeking employment”.

The Labour Court’s approach to mitigation has been refined in subsequent determinations. In Burke v Superior Express Ltd UDD1822 the Court emphasised that the duty does not require an employee to accept any available work; the employee must take reasonable steps having regard to his or her qualifications, prior remuneration and the available labour market. An employee with specialised qualifications is not required to accept entry-level work, but is required to make active and documented efforts in the relevant labour market.

Evidence of mitigation is essential. The Adjudication Officer will expect to see a record of job applications, agency contact, interviews attended and offers received. An employee who can demonstrate consistent and reasonable engagement will, in general, recover full loss subject to any successful interim earnings. An employee who cannot demonstrate consistent engagement may face a downward adjustment. 

3. Decision

In Conor Gilligan v Derrin Group Management Limited (ADJ-00058189), the WRC considered the Complainant’s evidence of mitigation. The Adjudication Officer assessed the steps taken by the Complainant after the dismissal to find alternative employment, including job applications made, agencies engaged, interviews attended, and any offers received. The Adjudication Officer’s findings on these matters informed the eventual quantum of the award.

In Accountancy & Business College v Anor, the Labour Court considered the same question on appeal from the WRC. The Court reviewed the documentary record of the employee’s mitigation efforts and assessed whether those efforts met the Sheehan standard of “actively seeking employment”.

Both decisions emphasise the importance of contemporaneous evidence. An employee who can produce a chronological record of mitigation steps — with dates, points of contact, and outcomes — will be in a much stronger position than one whose evidence is generalised or reconstructed. Conversely, an employer who can demonstrate that the employee did not engage seriously with the labour market may successfully argue for a downward adjustment.

The decisions also illustrate the relevance of the employee’s personal circumstances. Health concerns, caring responsibilities, geographic constraints and re-training requirements may each affect the assessment of what constitutes “reasonable” mitigation in a particular case. The standard is objective but contextual.

4. Takeaway

The decisions reinforce that mitigation is a substantive obligation rather than a formality. Employees who proceed to a WRC hearing on the assumption that mitigation will be a peripheral issue may find that their evidence — or the absence of it — materially affects the quantum of any award.

For employees, the practical advice is to document mitigation efforts contemporaneously and exhaustively. Each job application, recruitment agency contact, interview, networking activity, training course and offer should be recorded with dates and outcomes. A simple chronological log, supported by screenshots and emails, is often the most persuasive evidence available.

Practitioners advising employees should also consider the strategic question of when to accept an interim role. Acceptance of a lower-paid role may reduce ongoing loss and therefore the headline compensation figure, but a failure to accept reasonable alternative work may itself give rise to a downward adjustment. The advice in each case turns on the labour market, the employee’s qualifications, and the realistic prospect of finding equivalent or better employment within a reasonable timeframe.

For employers, the decisions provide a basis for testing the employee’s mitigation evidence at hearing. Cross-examination on the specifics of job applications, on the use of recruitment agencies, and on offers received (or not received) can be a productive line of inquiry. Where mitigation evidence is weak, a meaningful reduction in the award may be achievable.

5. Further information

This article was prepared for informational purposes only. For further advice, please email enquiries@crushell.ie or contact the offices of Crushell & Co Solicitors.

6. About Crushell & Co

Crushell & Co is a specialist law firm focused on protecting and advancing the rights of employees in Ireland. We offer a nationwide service, advising individuals on a wide range of legal and regulatory issues arising at work, including employment law, employment immigration and workplace accidents and injuries.

We help employees understand their position and options by translating complex legal issues into clear, practical advice. Our approach is tailored to each client, ensuring that our strategy is aligned with their personal and professional circumstances.

Connect: @CrushellLaw or www.crushell.ie