In Gourlay v West Dunbartonshire Council, Mr Gourlay was dismissed for gross
misconduct. He claimed that he had developed a serious depressive illness as a result
of his discriminatory treatment by West Dunbartonshire Council.
He brought claims for unfair dismissal, disability discrimination and victimisation. His
disabilities were MS, Type II diabetes along with severe depression. His claims
succeeded. The employment tribunal accepted that the Respondent’s discriminatory
conduct had left the Claimant permanently unable to work.
In assessing the appropriate level of compensation the tribunal took into account
past loss (to the date of hearing), future loss of wages to retirement and pension loss
also to retirement. The tribunal then however went on to reduce the amount of
computed calculation to take into account the fact that the employment might have
ended sooner for another reason. The tribunal also considered in the alternative that
had his employment continued he would have likely taken ill-health retirement
anyway. The tribunal reduced the award by 80.
Mr Gourlay appealed the compensation decision. The Employment Appeal Tribunal
agreed with him and held that the tribunal had been incorrect in it’s application of an
80% reduction. It gave the following reasons:
- Compensation for discrimination should restore the claimant to the position they would have been in but for the employer’s unlawful actions.
- The discriminatory dismissal left the Claimant unable to work. A reduction in compensation was only justifiable if a later lawful dismissal would also have left him unable to work. There was no evidence suggest this would have been the case.
- The tribunal also reduced compensation based on the possibility that the Claimant’s other health conditions might have led to ill health retirement. This was purely speculative rather than evidence-based. It as perverse to take it into consideration.
The claim will go back to another tribunal to determine remedy.
