What is the correct approach when assessing loss of earnings compensation for constructive dismissal and disability discrimination dismissal?

This was the issue before the Employment Appeal Tribunal in the case of Shittu v Maudsley NHS Foundation Trust.

The Claimant was employed by the NHS Trust from 2004 until 2016 when he resigned. The Claimant was disabled. During his employment, the Trust made a deduction from the Claimant’s pay for what they considered to be an unauthorised absence when attending a hospital appointment.  The Claimant shortly thereafter went off sick and proceeded to lodge grievances about the deduction made from his pay along with additional complaints of bullying and harassment. The Trust dismissed the Claimant’s complaints of bullying and harassment and, whilst offering a conciliatory meeting, refused the Claimant a right of appeal.  The Claimant resigned and issued claims for constructive unfair dismissal and disability discrimination dismissal.

The Tribunal found in favour of the Claimant, but only awarded basic pay for unfair dismissal.  No compensatory award was made in the respect of the unfair dismissal claim nor were loss of earnings compensation awarded under the discrimination claims.

The EAT found that the Employment Tribunal approached the issue on the basis of loss of chance.  It held the ET was, on the facts of the case, entitled to find that there was a 100% chance that the Claimant would have resigned on the same date, absent a fundamental breach of contract by the Respondent. The EAT went on to note that it is only open to a tribunal to refuse to pay loss of earnings compensation or to limit compensation to a period.  The tribunal is not entitled to make a percentage deduction where the tribunal is 100% confident the dismissal would have occurred on the same date as dismissal or the later period it has identified.

The EAT held that the decision of the Supreme Court in Perry v Raleys Solicitors,  which applies in professional negligence claims, that counter factual matters which depend on what the Claimant would have done absent the tortious act are to be decided on the balance of probabilities, whereas matters which depend upon what a third party would have done are to be assessed on the basis of a loss of chance does not apply to unfair or discriminatory dismissal claims in the tribunal.

This blog first appeared on Daniel Barnett’s Employment Law Bulletin and was written by Kate Lea, Senior Solicitor at didlaw.