Debique v Ministry of Defence – Mitigation of Loss

In this month’s employment news we consider whether rejecting an offer of reengagement could amount to a failure by a claimant, to mitigate their loss; and we consider of the first prosecution under the Bribery Act 2010.

Case round up

Mitigation of Loss

In the case of Debique v Ministry of Defence, the EAT gave consideration to the common law principle that it is the Claimant’s duty to take reasonable steps to mitigate their loss. It is for the Respondent to show that the Claimant did not act reasonably by failing to take steps that could mitigate their loss.

Ms Debique was a single mother serving in the British Army as a soldier. She had found it difficult to combine both parental and professional responsibilities and had raised this with the Ministry of Defence (“MOD”). In April 2007, she resigned and brought indirect race and sex discrimination claims against the MOD based on detrimental treatment as a result of her childcare responsibilities. Ms Debique succeeded in her claim for unlawful sex and race discrimination, however, before the case was heard the MOD made the Claimant an offer to transfer to an alternative role within the force where she received assurances that she would not be deployed on active service for 5 years and the unit she would be transferred to had childcare facilities. The Claimant rejected the offer of reengagement and pursued her claims against the MOD.

Notwithstanding that at first instance and appeal the tribunal upheld Ms Debique’s claims against the MOD, at a remedy hearing the claimant was awarded £15,000 compensation for injured feelings only.

However, the Tribunal did not make any award for loss of earnings as the Claimant had failed to mitigate her loss as she had unreasonably refused a suitable offer of alternative reengagement. The alternative posting would have provided stability whilst addressing the original concerns she had regarding childcare.

The reasoning behind the Tribunal’s findings:

1. They gave consideration to the notion that there may well be more than one reasonable course of action that is available to the Claimant. They gave significantly more weight to the premise that the offer of alternative employment came from the Respondent employer, in this case the wrongdoer.

2. The written offer contained solid assurances that the chances of deployment within a five year period were a remote possibility. They also stressed that she would be able to combine parental and professional responsibilities in the new role.

3. They disregarded any other factors in relation to Ms Debique’s own personal relationship with the service and concluded that any such factors did not play a substantial part in the decision.

It is clear that employees need to be extremely wary of rejecting an employer’s alternative offer of reengagement. This is particularly true if the employer has sought to address any concerns of the employee thereby incorporating noticeable changes into the alternative offer.

First Conviction under the Bribery Act 2010

A former magistrates’ court clerk has admitted accepting a £500 bribe to improperly carry out his professional responsibilities. Munir Patel pleaded guilty to section 2 of the Bribery Act 2010 and admitted that he had accepted the bribe in exchange for omitting to record a traffic offence in the court database.

Section 2 of the Bribery Act provides an outline of the scenarios by which offences relating to bribery are committed. In particular, section 2(1) states that a person is guilty of an offence if they request, agree to receive, or accept a financial or other advantage intending that a relevant function or activity should be performed improperly.

Mr Patel pleaded guilty to bribery and misconduct in public office at Southwark Crown Court, illustrating that there is a further branch through which crimes of this nature can be caught. The prosecution argued that Mr Patel had abused his position as an officer of Redbridge Magistrates’ Court, by soliciting a bribe from a member of the public.

The prosecution case was underlined by the premise that public servants are required to act with integrity, impartiality and honesty. Mr Patel’s conduct brought the criminal justice system into disrepute as Mr Patel had undermined the overarching laws that he was employed to uphold.

Mr Patel also pleaded guilty to misconduct in public office for other similar offences and is due to be sentenced on 11 November at Southwark Crown Court. In addition, there is a corporate offence where organisations who fail to prevent bribery by anyone who works on its behalf, may be liable. There is however, a full defence if employers can show that they have adequate procedures in place to prevent bribery.

The case is important as it highlights that there is now an additional method by which prosecutors are able to bring a case for misconduct. It should serve as a timely reminder for organisations to ensure that they have adequately managed their Bribery Act compliance risk.

In the News

The Government recently made two important announcements that will affect the way in which the Tribunal system will operate:

1. From April 2012 the qualification period for the right to claim unfair dismissal will be extended from 1 to 2 years.

2. It is intended that fees will be introduced to employees who wish to bring Tribunal claims against their employer from 1 April 2013. The proposed sliding fee scale is:

  • £250 to be paid when making an application
  • a further £1000 to pay if a hearing is listed (this would increase if the value of the claim is over £30,000)
  • Claimants would recoup their money if they win but it will be forfeit to the Tribunal service if they lose.

The Government suggests that the introduction of fees may make a Claimant think twice before bringing a claim. Similarly, the introduction of a two year qualifying period for bringing an unfair dismissal claim may reduce the number of claims being brought by Claimants. Conversely, the changes may impact the number of other claims being brought through alternative channels where no qualifying period is required in respect of a dismissal for example alleging discrimination or a claim under the whistleblowing legislation. This may be particularly relevant in the case of a disgruntled employee who seeks redress through whatever means are available.

Sejal Raja
sejal.raja@rlb-law.com
© RadcliffesLeBrasseur
October 2011


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.