Debique v Ministry of Defence [2010] IRLR 471
The EAT confirmed that the law relating to mitigation of loss is
clear in this situation. It is for the employer to show that the
employee was acting unreasonably in failing to accept an offer of
re-engagement. Whether or not the behaviour of the employee is
unreasonable is a question of fact to be determined by the Tribunal
on the evidence before it. The test of what is reasonable is an
objective one, with the question being considered in light of the
employee's own circumstances.
In determining that the employee's failure to accept the
new post was unreasonable, the EAT focussed on her reasons for
refusal and found that the discriminatory conduct had not caused
her such upset that she was unable to make a wholly rational
analysis of the offer. In any case, this did not play a substantial
part in her decision. The EAT commented that the employee was
unreasonable in not at least taking up the offer and "seeing
what happened".
Implications
It is commonplace to see arguments by employers for a reduction
in compensation awarded in redundancy cases, where the employee has
refused the offer of alternative employment that would limit the
financial impact of their dismissal. This judgment makes clear that
a refusal by an employee to take up another post could result in a
reduction in an award, even in circumstances where the employee has
resigned in response to alleged discriminatory treatment.
Employers will want to bear in mind the tactical advantage that may
be gained in litigation by making a reasonable offer of alternative
employment (or even atypical work such as consultancy arrangements)
to a departing employee, in such a way as to provide a convincing
argument that the employee's unreasonable refusal reduces
their entitlement to compensation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
