Debique v Ministry of Defence – claimant’s award reduced due to failure to mitigate losses
This case, involving the British Army and Miss Debique, a single mother and national of St Vincent has been ongoing since 2007.
Although initially sympathetic to her childcare needs, the Army lost patience with Miss Debique after a number of incidents, including an occasion where she failed to attend a parade. The Army subsequently informed Miss Debique that if she could not rearrange her childcare so that she could be available 24/7, that she would be sacked for gross misconduct. Following a formal warning, Miss Debique resigned alleging she feared she would be sacked in any event. She went on to claim that the requirement to be available 24/7 amounted to indirect sex discrimination. Miss Debique also claimed that she had been indirectly racially discriminated against because the immigration rules prevented her from inviting relatives to come to the United Kingdom to help with childcare.
These claims were successful both at the original tribunal and at the Employment Appeal Tribunal. As the parties were unable to agree a figure for compensation, the matter went to a remedies hearing.
One of the ways in which employers can encourage claimants to agree to reasonable settlement terms, is to remind them that there is the potential for the tribunal to reduce awards for reasons such as the claimant’s contributory fault or failure to reasonably mitigate loss.
In this instance, the tribunal awarded Miss Debique £15,000 for injury to feelings arising from discrimination but declined to make any award for loss of earnings as they found that Miss Debique had not taken reasonable steps to mitigate her loss.
This conclusion was reached on the basis that prior to the original tribunal, the Army offered to remove the disciplinary warning from Miss Debique’s file and provide her with a five year “non-deployable” posting at a base in Blandford where childcare was available. This offer was first made verbally but then confirmed in writing.
The tribunal found that Miss Debique was justified in refusing the verbal offer but had not acted reasonably in refusing the formal offer, given that it offered her security for a significant period of time. The tribunal also observed, that if after five years, Miss Debique was deployed to a less suitable posting she could allege discrimination at that point.
Miss Debique appealed the remedy but the Employment Appeal Tribunal found that the remedy was within the law and was not perverse. This judgment offers some comfort to employers who seek to mitigate claimants’ losses by offering alternative roles. However, it should be noted that in this case the Employment Appeal Tribunal found that there was no evidence to suggest that Miss Debique was so disenchanted with the Army that she could not remain in military service. The fact that the forms of discrimination in this case were indirect in their nature appears relevant. Had Miss Debique been subjected to a campaign of harassment or some form of direct discrimination, the tribunals would no doubt have concluded that Miss Debique would quite reasonably not wish to remain in the Army.
Author: Jenna Hunter
Published: 31 January 2012