How employers can reduce damages awarded by offering suitable alternative employment

21 March 2012

The Employment Appeal Tribunal (EAT) in Debique v Ministry of Defence has held that where a Claimant successfully shows discrimination or unfair dismissal, they will however not receive an award for loss of earnings should they not have accepted a reasonable offer of re-engagement.  Ms Debique was in the British Army and encountered various childcare difficulties in her posting.  She resigned and claimed discrimination and constructive dismissal.

However, after her resignation, but before the litigation commenced, the Army made two offers, one in writing, of a five year posting for Ms Debique at a base where childcare was widely available. It was anticipated that after this period her child would have reached school age, thus making her childcare responsibilities less onerous.

Ms Debique won both her claims at the Employment Tribunal and was awarded £15,000 as an award for injury to feelings. However, the Tribunal did not make an award for loss of earnings because of Ms Debique’s failure to take up the new posting and thus mitigate her loss. The Tribunal held that she was unreasonable in refusing the offer when presented to her in writing because it explained in detail the childcare arrangements that would be available to her.

Ms Debique appealed against this decision.  At the appeal, the EAT agreed with the Employment’s Tribunal’s decision.  It held that the Claimant’s duty is to act in mitigation as a “reasonable man” unaffected by the hope of compensation from a court.  It is, though, incumbent upon the employer to show that the Claimant failed to mitigate by unreasonably refusing an offer.

The EAT then stated that, where the Tribunal had identified the correct test, the burden was on the Claimant to demonstrate that this had not been applied and the Claimant had not done so in this case. Accordingly, it dismissed the Claimant’s appeal and, in doing so, it remarked that the question of reasonableness was one of fact for the Tribunal and that it was not for the EAT to second guess this.

This is a useful reminder for employers that they can reduce or mitigate potential awards by offering alternative roles to employees.  However, it was significant that the discrimination was indirect (in other words the difficulties with childcare could in principle affect anyone but in practice primarily impact women) and if there had been direct discrimination, or harassment, the result could have been different because Ms Debique could legitimately have said that it would be unreasonable for her to stay in the Army in any capacity and she could have received loss of earnings compensation on that basis.

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