The Employment Appeal Tribunal (EAT) has held, in the case of Debique v Ministry of Defence, that when a dismissed employee unreasonably refused an alternative role, she had failed to mitigate her loss, and was, as a result, entitled to no compensation for loss of earnings.

Ms Debique was a single mother who served in the British Army.  In the months following her return from maternity leave, she experienced difficulties in balancing her childcare and work responsibilities, and matters culminated in disciplinary proceedings and formal warnings against her.  She had sought to have her sister come to the UK from St Vincent to assist her, but immigration rules prevented her sister from staying in the UK for more than six months.  Against this backdrop, she resigned on one year’s notice in April 2007 and claimed indirect sex and race discrimination against the MOD.  Faced with a hearing in October 2007, the MOD asked Ms Debique to agree to a postponement of that hearing, to discuss alternative arrangements to retain her as a soldier.  Her formal warnings were rescinded and she was offered a unique five year posting to Blandford, which addressed her childcare difficulties and offered stability until her daughter was seven.  Ms Debique refused the offer.

The tribunal upheld her indirect discrimination claims and awarded Ms Debique £15,000 for injury to feelings, but made no award for any loss of earnings because of the refusal of the Blandford offer.  The EAT has now upheld the decision not to make any award for loss of earnings. The EAT considered that although Ms Debique was disillusioned with the Army, her reason for rejecting the Blandford offer was based on her belief that the five year posting was not guaranteed. That was considered to be unreasonable when she had received a written offer and “solid assurances” that she would not be deployed for five years.  It was not disputed however that as a matter of military law, she could still be deployed during that period.  The EAT felt that Ms Debique should have taken the Blandford post to see what happened.

Impact for employers

  • Although the employee has a duty to mitigate loss, it is for the employer to show that this has not happened.  In certain circumstances, even once proceedings are at an advanced stage, an offer of re-engagement can reduce an employer’s potential liability where that is a viable option for both parties.  If an employee refuses, they could be held to have failed in their duty to mitigate.
  • There will clearly be cases where it would be unfair to expect the employee to accept an offer of re-engagement, particularly in cases of directly discriminatory conduct.  This was not, however, one of them.
  • Whether Ms Debique’s refusal of the Blandford offer amounted to an unreasonable failure to mitigate was a question of fact for the employment tribunal looking at all of the circumstances and it had, in this case, directed itself correctly.