Colt Technology Services Ltd v Brown UKEAT/0023/17/BA; UKEAT/0024/17/BA

Appeal and cross-appeal against the remedy judgment in a disability discrimination case. Appeal and cross-appeal allowed in part.

The Claimant, who continues to be employed by the Respondent, succeeded in certain claims of harassment and discrimination and in relation to certain failures to make reasonable adjustments. The questions that were asked at the remedy hearing and which are relevent to this appeal were:

Respondent's appeal
1) Should there be a 50% or a 75% deduction from loss of earnings in respect of PHI payments. The Claimant's employer paid the premiums but the Claimant had also elected for a 75% payment in return for a lower salary instead of a 50% payment. The ET ruled that only payments representing 50% of the Claimant's salary should be deducted from the PHI benefit payments not the full 75% actually received by the Claimant.

2) Would or might the Claimant have been made redundant in about April 2013 in any event and, if applicable, how should this be reflected in any award of compensation. The ET awarded him a sum equating to 70% of what he would have received.

3) What is likely to occur concerning the PHI payments in the future? The ET held that PHI payments might be discontinued without the Claimant having sufficiently recovered his health to be disqualified from further payments.

Claimant's cross-appeal
The Claimant's cross-appeal related to findings 1) on the time at which the Claimant's recovery would commence, 2) that he would earn £65,000 per annum by 2020; 3) on whether the 50% chance of the Claimant relapsing had properly been taken into account; and 4) on the apportionment of responsibility of 70/30.

The EAT first considered the Respondent's appeal. Taking the appeal grounds in turn, the EAT ruled as follows: 1) Ground 1 was dismissed. The Claimant chose to receive lower salary in return for increased PHI protection and had therefore made an indirect contribution to the premiums - therefore 50%, not 75%, of the PHI payments should be deducted from his award; 2) Ground 2 was allowed. The Claimant could not possibly be awarded something of this nature when he is still in employment; and 3) Ground 3 was allowed.

On the cross-appeal grounds, 1) the EAT dismissed the first ground. The ET had medical evidence about the timescale for the Claimant's recovery and possible return to work and made a decision open to it on the evidence; 2) The EAT dismissed the second ground, saying that it could not be an error on the part of the ET to make a broad assessment of what the Claimant would ultimately achieve having regard to the various possible scenarios put in evidence; 3) this ground was also dismissed. The ET had explained its conclusions succinctly in relation to that period of loss and was not required to factor in the risk of relapse in some sort of specific percentage when it came to that later stage; 4) this ground of appeal was allowed as the ET had not approached the matter as now required following the Court of Appeal decision in BAE Systems (Operations) Ltd v Konczak [2017] EWCA Civ 1188.

Published: 07/06/2018 14:05

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