News & Views

Mitigation of loss – offers of alternative employment

BY Margaret Anne Soderqvist-Clark
Employment law
BG Purple

Even where an employee succeeds in a claim before an employment tribunal, this is not the end of the matter for employers. 

A prudent employer, who foresees such an eventuality, can still seek to minimise any losses flowing from the unlawful action.  

In Debique v Ministry of Defence the Claimant was a single mother serving as a Foreign and Commonwealth soldier in the British army.  She handed in her notice of termination and brought a claim for indirect race and sex HR against the MoD, on the basis that she had been treated less favourably because of her childcare issues.  Ms Debique succeeded in her claim for indirect race and sex HR and was awarded £15,000 for injured feelings. However the Court of Appeal held she had failed to mitigate her loss by rejecting redeployment which would have provided stability and addressed her childcare difficulties. Therefore there was no award for loss of earnings.  

At tribunal a claimant is able to claim for loss of earnings following termination.  If a claimant is to receive compensation for loss of earnings, a tribunal would expect the claimant to mitigate the loss they have suffered.  This involves the claimant looking for alternative work and also applying for state benefits.  It is, however, the responsibility of the respondent, not the claimant, to prove that the claimant has not mitigated their loss.  For the amount of compensation to be reduced, the respondent must be able to show that the claimant not only did not take reasonable steps to find alternative work, but  also that the employee acted unreasonably in not doing so. This would be a question of fact in each case. 

Claimants could argue that it is unreasonable to expect them to continue working for an employer when they have suffered HR. However, the size of the army and the number of bases around the country may have been a factor in this particular case.  This means that large multinational companies or retailers may be able to rely on this decision when a Claimant has been offered and refused alternative employment at another location working with different colleagues. 

In this type of situation it would be prudent for employers to keep records to enable them to provide evidence to a tribunal of any suitable jobs that the claimant could have applied for, but they should also be able to show that the employee could have reasonably taken the jobs advertised. 

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