Debique v Ministry Of Defence

In assessing mitigation of loss, the question is whether it was unreasonable for the claimant to refuse the employer’s offer, not whether the offer was reasonable for the employer to make. The issue is objective and is determined on the totality of the evidence, including the circumstances of the offer, the employer’s conduct, the claimant’s treatment and state of mind. The burden rests on the wrongdoer, and tribunals should not impose an unduly stringent standard on the injured party. A tribunal’s application of that test is primarily factual. An award for injury to feelings may encompass matters which might otherwise be described as aggravated damages; a separate award is not mandatory where the overall award properly compensates the claimant.

The claimant, a single-parent Commonwealth soldier, succeeded in discrimination proceedings against the Ministry of Defence. At the remedy hearing, the Employment Tribunal awarded £15,000 for injury to feelings but made no award for loss of earnings because she had unreasonably rejected a written offer of a five-year posting that would have addressed her childcare difficulties. It also declined aggravated damages.

She appealed against the findings on mitigation, loss of congenial employment and aggravated damages. The central issues were whether the Tribunal had applied the correct mitigation principles and whether its evaluative conclusions were legally or perversely flawed.

1. The appeal was dismissed. The finding that the claimant had failed to mitigate her loss was upheld.

2. The Tribunal correctly applied the principles stated in Wilding v British Telecommunications Plc [2002] ICR 1079. The employer had to show that refusal of the offer was unreasonable. The test was objective, assessed on the totality of the evidence, while taking account of the claimant’s circumstances and state of mind. The question was not whether the employer’s offer was reasonable, but whether the claimant’s refusal was unreasonable.

3. The Tribunal was entitled to distinguish between the initial oral offer and the later formal written offer. The latter provided sufficiently strong assurance that deployment away from Blandford before 2012 was very unlikely, notwithstanding that it could not be guaranteed as a matter of strict military law. The assessment was factual and was not perverse.

4. The fact that the claimant was engaged in litigation did not make refusal reasonable. Shindler v Northern Raincoat Co Ltd [1960] 1 WLR 1038 laid down no general rule preventing a finding of failure to mitigate. The principle in Pilkington v Wood [1953] Ch 770, concerning refusal to mitigate by embarking on contested litigation, was not analogous.

5. Once the mitigation finding stood, the refusal to compensate for loss of congenial employment followed. Aggravated damages were not compulsory. The Tribunal could account for relevant factors within the £15,000 injury-to-feelings award, and no separate award or larger award was legally required.

• Employment Appeal Tribunal: appeal against the Employment Tribunal’s remedy decision dismissed. The Tribunal’s findings on mitigation and damages were upheld.
• Employment Tribunal: discrimination claims had succeeded. At remedy, £15,000 was awarded for injury to feelings, with no award for loss of earnings, loss of congenial employment or aggravated damages.
• Earlier appeal: the liability decision was upheld by the Employment Appeal Tribunal and reported at [2010] IRLR 471.