Requirements for an employee to mitigate loss

A recent Employment Appeals Tribunal has highlighted the danger for employees of rejecting an employer's offer of re-engagement.  It is a well-established principle that an employee must take reasonable steps to mitigate his or her losses when pursuing a claim in the Employment Tribunal.  If a Tribunal finds that a Claimant has unreasonably failed to mitigate their loss, then it can reduce the amount which a Claimant receives as compensation.  In some circumstances the compensation awarded can be £0.

In Debique v Ministry of Defence Ms Debique, a single mother, brought a claim against the Ministry of Defence for indirect race and sex discrimination.  Her claim was based on allegations that she had received detrimental treatment because of her childcare responsibilities.  Before the case was heard, the Ministry of Defence, offered Ms Debique a role in which she would not be deployed for five years, and which was within a unit with enhanced childcare responsibilities.  Ms Debique rejected the offered and proceeded with her claim.

The Employment Tribunal upheld her claim and awarded her £15,000 as compensation for injury to feelings but declined to award her compensation for loss of earnings.  The Tribunal concluded that she had failed to mitigate her loss by unreasonably refusing the offer of reengagement.  Ms Debigue was disillusioned with the Army and believed that the offer of a five-year posting with no deployment could not be guaranteed.  The Tribunal, however, pointed out that the offer was made in writing by an officer with authority to make it.  Furthermore, Ms Debique should have accepted the offer to "see what happened”.  If she had encountered any difficulties, she would have been able to raise a further discrimination claim.

Ms Debique appealed the decision to the Employment Appeals Tribunal.  The EAT, however, dismissed her appeal, stating that the new role would have permitted Ms Debique to combine her childcare responsibilities with her military duties.  The decision stresses the importance of an employee seriously considering an offer of re-engagement from an employer rather than pursuing a claim with the expectation of receiving a substantial award. 

24 October 2011