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Mitigation of Loss

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[Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary]

Does the duty of mitigation, which applies for the purposes of claiming compensation before the employment tribunal, oblige a wronged employee to consider an offer of new employment with the employer with whom there has been a dispute?

Yes, says the EAT in Debique v Ministry of Defence.

Ms Debique worked for the British Army. She gave birth to a daughter. She was a single parent and found it difficult to combine motherhood with her responsibilities as a serving soldier. After a dispute she gave notice and left. She succeeded in her claim for unlawful indirect sex and race discrimination (see [2010] IRLR 471).

At a remedies hearing before the employment tribunal she was awarded £15,000 for injury to feelings but nothing for loss of earnings, on the basis she had failed to mitigate her loss. She had refused an offer, made by her employer during her period of notice, of a posting which would have provided stability and which would adequately have addressed her childcare difficulties.

The EAT held that whether her refusal to accept the offer made to her was an unreasonable failure to mitigate loss was a question of fact for the tribunal. The tribunal had correctly applied the test and considerations formulated by Potter LJ in Wilding v British Telecommunications plc [2002] ICR 1079 and its decision would not be disturbed. The tribunal's finding that there was no case for aggravated damages was also upheld.