No award for lost earnings where re-engagement offer was refused

In an interesting case (Debique v Ministry of Defence), the EAT ruled that an employee who had been subjected to indirect race discrimination by her employer's failure to accommodate her childcare obligations was unreasonable when refusing an offer of redeployment to a post where her caring obligations could be reconciled with her duties. Potential compensation for loss of earnings flowing from an act of discrimination was therefore reduced to zero to reflect a failure to mitigate her loss.

As we are all aware, once an Employment Tribunal has reached a decision on liability, it is then be necessary to decide on the appropriate remedy. More often than not this amounts to an award of financial compensation. The financial compensatory award is based upon an individual's losses as a result of the employer's prohibited act, in this case discrimination. But it does not mean that the ex-employee can simply sit back and claim a financial award. They will be under an ongoing duty to keep their losses to a minimum - in other words, an obligation to mitigate their losses.

This case is relatively complicated as it involved a single parent who was in the British Army. As a single parent, Ms Debique had difficulties combining her childcare obligations with her duties as a serving soldier. The Army initially seemed willing to accommodate her childcare arrangements by adjusting her working hours and exempting her from weekend duties. However it later imposed a number of sanctions arising from various incidents including a failure to attend a parade. This led to disciplinary proceedings that resulted in a disciplinary warning. Ms Debique, believing that ultimately she would be dismissed, resigned and brought a claim. Following commencement of the claim, the Army made her an oral offer of a posting for five years on a base where childcare support was likely to be available. She declined that offer. It was this refusal that the EAT decided amounted to a failure to mitigate her losses. This is clearly an interesting case and one that must be looked at on its individual merits. However, in certain circumstances it might well be tactically sound to offer an employee who is seeking to bring ET proceedings a job on the basis that, if it is declined, it would at least allow the employer to argue failure to mitigate.

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