Discrimination Compensation: Duty to Mitigate Loss

In Debique v Ministry of Defence the EAT upheld an employment tribunal’s decision not to award compensation for loss of earnings following successful complaint of discrimination as Ms Debique had failed to mitigate her loss.  Her refusal to accept a transfer to an alternative role with the same employer was unreasonable.

Ms Debique was a single mother serving in the army.  She gave one year’s notice of termination and brought sex and race discrimination claims alleging detrimental treatment because of her childcare responsibilities.   Before the case was heard by the tribunal, the army offered to transfer her to a role where she would not be deployed on active service for five years and which resolved the childcare difficulties which had given rise to the claim. 

The tribunal upheld the discrimination complaints but found that she turned down the offer of a transfer because she did not think that a five year posting without deployment on active service could be guaranteed.  It considered that this was an unreasonable position to take.  A reasonable person reading the terms of the offer would have realised that deployment on active service within the 5 year period was very unlikely.  She should have taken up the offer and waited to see what happened.  On this basis, it decided not to award any compensation for financial loss and this decision was upheld by the EAT on appeal.

This case demonstrates that employers who are able offer an alternative role may benefit from doing so. If the claimant is found to have unreasonably turned it down compensation will be reduced, possible to nil as in this case.  However, employees who have suffered discrimination at the hands of their employer will often be found to be acting reasonably in rejecting an offer of alternative employment with that employer. The tribunal in this case found that although Ms Debique was upset by her treatment, she had been prepared to remain in the army.