The Dangers Of Rejecting An Offer Of Re-Engagement

Debique v Ministry of Defence

The ruling in this case demonstrates that if an employee refuses the offer of an internal transfer to a new role, they fail to mitigate their loss and are not entitled to claim for loss of earnings.

FACTS

Ms Debique served as a Foreign and Commonwealth soldier in the British Army. Following the birth of her baby, as a single mother, she felt she could not continue with her existing role due to detrimental treatment as a result of her childcare responsibilities. She served notice of termination and brought claims for both indirect race and sex discrimination against the Ministry of Defence (MOD).

Before the case was heard, the MOD offered to transfer Ms Debique to a unique role in which she would not be deployed on active service for 5 years and would be working in a unit with enhanced childcare facilities. She rejected this offer and continued with her claim.

DECISION

The Tribunal and Employment Appeal Tribunal (EAT) upheld her claims for discrimination and she was awarded £15,000 for injury to feelings. However she was not awarded any loss of earnings as she had unreasonably refused the MOD's offer of an alternative post and re-engagement and therefore she had failed to mitigate her loss. Although Ms Debique argued that the reason she refused the post was because she had become disillusioned with the Army, the Tribunal found that the real reason she had rejected this offer was because she did not believe a five year posting without deployment on active service could be guaranteed. The Tribunal took the view that even if she had doubts, she should have taken the role to "see what happened" and would be at liberty to raise a further Tribunal claim if there were any difficulties.

Ms Debique appealed against the decision not to award her loss of earnings.

The EAT had to consider whether there were avenues available to Ms...