A claimant in the Employment Tribunal (ET) has a duty to take all reasonable steps to mitigate his or her loss. If the ET finds that the claimant has failed to do so, it has the power to reduce the amount of the compensation award.
In Debique v Ministry of Defence (MoD), the Employment Appeal Tribunal (EAT) upheld the ET’s decision not to award Miss Debique compensation for loss of earnings on the ground that she had unreasonably refused an offer of alternative employment.
Miss Debique, who is originally from St Vincent, joined the Army at the age of 19 and served in the Royal Corps of Signals. In 2005, she gave birth to a daughter. When she returned from maternity leave, she found it difficult to combine her responsibilities as a mother with those of a serving soldier. Her half-sister was willing to move to the UK to help look after the child, but was not able to gain permission to do so. At first, Miss Debique’s difficulties were not treated sympathetically and her inability to comply with the demands of her rôle resulted in disciplinary action. This led to her giving notice to terminate her service. The MoD wished to retain her services, however, and an offer was made of a five-year posting to Blandford in Dorset. The MoD believed that this would alleviate Miss Debique’s situation as the camp had a strong childcare network and would thus enable her to care for her child without the need for assistance from her half-sister. The offer was rejected, however.
Miss Debique brought claims of indirect sex discrimination and race discrimination against the MoD and won. The ET held that the application of the rules on immigration to a soldier from St Vincent who was a single mother did constitute indirect sex and race discrimination as it prevented her from securing childcare and so forced her to leave the Army. The MoD, as part of the Crown, was held to be partly responsible for the lack of flexibility of the immigration rules. The ET awarded Miss Debique £15,000 for injury to feelings but declined to make any award for loss of earnings, on the basis that she had failed to mitigate her loss as she unreasonably refused an offer of alternative employment that would have adequately addressed her childcare difficulties. Miss Debique appealed against this decision.
The EAT stated that the correct approach in such cases is set out in Wilding v British Telecommunications plc. The question that must be asked is not whether it was reasonable for the employer to make the offer but whether it was unreasonable for the employee to refuse it. Sedley LJ said, “This is a real distinction. It reflects the fact that if there is more than one reasonable response open to the wronged party, the wrongdoer has no right to determine his choice; it is where and only where the wrongdoer can show affirmatively that the other party has acted unreasonably in relation to his duty to mitigate that the defence will succeed.”
In the EAT’s view, the question of whether or not Miss Debique’s refusal to accept the offer of redeployment constituted an unreasonable failure to mitigate was quintessentially one of fact for the assessment of the ET, applying well‑established principles. The ET had directed itself correctly and considered Miss Debique’s points fairly and conscientiously. It was not for the EAT to second-guess its decision. The appeal was therefore dismissed.