A new offer of employment must be considered seriously by a claimant ( mitigation and compensation ). | |||
Debique v Ministry Of Defence (Sex Discrimination) [2011] UKEAT 0075_11_1509 | |||
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4/12/2011
In Debique v Ministry of Defence the EAT (HJ UNDERHILL (PRESIDENT))has ruled that an offer of new employment from an employer who has been the subject of a dispute must for the purposes of mitigation and compensation be considered seriously by the claimant. Ms Debique a single parent gave birth whilst working as a soldier for the British Army. It was difficult to combine motherhood with her responsibilities and subsequent to a dispute she gave notice and quit the army. She submitted an ET1 claiming unlawful indirect sex and race discrimination ([2010] IRLR 471) and won. The employment tribunal awarded her compensation for injury to feelings but not for loss of earnings as she had failed to mitigate her loss by refusing a reasonable offer made during the period of notice that would have addressed her concerns about childcare. The EAT ruled that the refusal to accept a reasonable offer was unreasonable and failed to mitigate her loss and was a question of fact for the tribunal to decide. Potter LJ in Wilding v British Telecommunications plc [2002] ICR 1079 had been correctly applied by the employment tribunal. The tribunal decision regarding a claim for aggravated damages was upheld.Authorities on mitigation, Shindler v Northern Raincoat Co Ltd [1960] 1 WLR 1038 and Fyfe v Scientific Furnishings Ltd [1989] ICR 648 were quoted. The judge agreed that there, "may be room for argument about whether and in what sense “aggravated damages” are indeed a separate head from “injury to feelings”, requiring always to be dealt with by way of a distinct award".... Even if aggravated damages are in principle separate or separable from an award for “ordinary” injury to feelings, the decision of where the latter stops and aggravated damages start is a matter of judgment and evaluation: there can be no bright line. There will be cases where a tribunal takes into account in its award for injury to feelings elements that another tribunal might have compensated separately by way of an award of aggravated damages. That does not matter as long as the elements in question are properly taken into account under one head or the other. The EAT did not accept the relevance to this case of the Court of Appeal case of Scott v Commissioners of Inland Revenue [2004] ICR 1410 as that case was "concerned only with the specific question of whether the guidelines given in Vento v Chief Constable of West Yorkshire Police (no. 2) [2003] ICR 318 did or did not cover cases where it was appropriate to make an award of aggravated damages." The appeal was dismissed. |
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| Transcript of the judgement:- Debique v Ministry Of Defence [2011] UKEAT 0075_11_1509 |
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| 2011 Pre-trial publicity may affect the possibility of costs being awarded against a claimant in the EAT. - Iteshi v Office of Water Services (Ofwat) [2011] UKEAT 0178_11_2209 Having a corporate financial interest in the outcome or being a governor of a body equates with apparent bias in ones own case - Kaur, R (on the application of) v Institute of Legal Executives Appeal Tribunal & Anor [2011] EWCA Civ 1168 The CJEU Advocate General advises that Part-time Judges are workers and that discrimination against different types of judges is not allowed. - O'Brien v Ministry of Justice [2010] UKSC 34 Costs are compensatory not punitive and reflect the "effect" of the conduct in question" - Barnsley Metropolitan Borough Council v Yerrakalva [2011] EWCA Civ 1255 Unheard and contested matters dismissed at a pre-hearing should not be the subject of a costs award - Dean & Dean (a firm) & Ors v Dionissiou -Moussaoui (Rev 1) [2011] EWCA Civ 1332 Ogden Tables may be acceptable to determine pension loss where cogent reasons are given - Chief Constable Of West Midlands Police v Gardner [2011] UKEAT 0174_11_1910 A holiday must be taken within a reasonable time period or the holiday will cease to be considered as providing a rest from work, but rather "a period of relaxation and leisure" - KHS AG v Schulte ECJ Case C-214/10 The emasculation of the employment tribunal system is the next stage on the road to a fundamental undermining of workers' rights and protections in Britain The level of compensatory award for unfair dismissal must be 'grossed up' before the application of the statutory cap. - Hardie Grant London Ltd v Aspden [2011] UKEAT 0242_11_0311 Even where lists of issues have been agreed between the parties they should be scrutinised by employment judges. - Price v Surrey County Council & Anor [2011] UKEAT 0450_10_2710 Female workers suffered indirect sex discrimination in a pension scheme but no loss (and therefore will not receive compensation) - Copple & Ors v Littlewoods Plc & Ors [2011] EWCA Civ 1281 In order to claim holiday pay under Reg 16 (1) of the Working Time Regulations an employee must have already have stated an intention to take it. - Fraser v Southwest London St George’s Mental Health Trust [2011] UKEAT 0456_10_0311 Even where lists of issues have been agreed between the parties they should be scrutinised by employment judges. - Price v Surrey County Council & Anor [2011] UKEAT 0450_10_2710 Claimants with Before the Event Insurance may choose their own solicitor - Brown-Quinn & Anor v Equity Syndicate Managment LTD & Anor [2011] EWHC 2661 The High Court issues guidance as to when contractual provisions are valid - Hussain v Surrey and Sussex Healthcare NHS Trust [2011] EWHC 1670 (QB) Disciplinary processes must be conducted fairly and without undue delay - Lim v Royal Wolverhampton Hospitals NHS Trust [2011] EWHC 2178 (QB) An employer's reasonable (but wrong) belief that a worker is working illegally is no defence to an illegal deduction from wages claim - Okuoimose v City Facilities Management (UK) Ltd [2011] UKEAT 0192_11_1309 Whistleblowers are not protected against victimisation by fellow workers - NHS Manchester v Fecitt & Ors [2011] EWCA Civ 1190 An employee sharing profits in the firm is not necessarily a partner - Williamson & Soden Solicitors v Briars EAT [2011] UKEAT/2011/0065_10_2705 Leaving a page out of the reasons for an EAT appeal was venial - Hine & Anor (t/a Hine Marketing Partnership) v Talbot & Ors [2011] UKEAT 1783_10_2706 In Equal Pay claims after a TUPE transfer, red circling will be accepted as constituting a genuine material factor defence - Scotland Co Ltd v Buchanan & Anor (Equal Pay Act : Material factor defence and justification) [2011] UKEAT 0042_10_2505 |
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