The claimant was found to have been dismissed unfairly and discriminated against following a period of illness. At the time of dismissal the claimant was working 25 hours per week. The Tribunal assessed her future loss of earnings on the basis of her finding an alternative job on 25 hours per week within a year of the hearing. They also calculated her pension loss using the simplified rather than the substantial approach. The claimant appealed against both aspects of the remedy decision.

The EAT allowed the appeal on the future loss of earnings. The Tribunal had not given proper consideration to, and made proper findings of fact, in relation to any continuing loss that the claimant may suffer after she had found suitable alternative employment, and in particular had made no finding as to the salary she would be earning. As to the pension approach, the simplified approach was the correct one, but the decision needed to be reviewed in the light of any decision taken on continuing loss.

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Appeal No. UKEAT/0378/11/DM

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX

At the Tribunal

On 18 November 2011

Before

THE HONOURABLE MR JUSTICE SUPPERSTONE, MR B BEYNON, MR J MALLENDER

MRS S GRIFFIN (APPELLANT)

PLYMOUTH HOSPITALS NHS TRUST (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR ABOU KAMARA (Representative)

Free Representation Unit
6th Floor, 289-293 High Holborn
London
WC1V 7HZ

For the Respondent
MISS E CUNNINGHAM (of Counsel)

Instructed by:
Messrs Bevan Brittan LLP
Kings Orchard
1 Queen Street
Bristol
BS2 0HQ

DISABILITY DISCRIMINATION – Compensation

Disability Discrimination - Remedy.

Whether there be continuing loss of earnings - remitted to Tribunal to make relevant findings.

Pension loss - whether Tribunal erred in adopting simplified approach rather than substantial loss approach. Remitted to Tribunal only to consider if continuing loss of earnings, simplified approach still correct. Tribunal to consider paragraph 4.14(c) of the Guidance.

1. The Appellant appeals the decision of an Employment Tribunal made on 5 April 2011, following a remedies hearing heard at Plymouth on 15 December 2010, in relation to awards of compensation, specifically relating to future loss of earnings and pension loss. The Appellant was employed by the Respondent as a Specialist Clinical Technologist in the field of Bone Densitometry.

1. At the time of her dismissal, the Appellant was contracted to work a 33.5 hour week, with a full time equivalent salary of £32,753, and she was a member of the Respondent's final salary pension scheme. She was, in fact at the time of her dismissal, only working a 25 hour week. Following a period of absence, resulting from the Appellant developing the condition known as lupus, she returned to work in November 2008. However, after several months she was unable to continue with her work and her employment ended on 30 September 2009.

1. An Employment Tribunal found the Respondent to have discriminated against the Appellant on the ground of disability, failing to make reasonable adjustments and the Respondent had constructively unfairly dismissed her, by reason of the failure to make those adjustments. A second Employment Tribunal hearing dealt with remedy. It was the decision of that Tribunal with which we are concerned, specifically as we have said, in relation to two issues, first: future loss of earnings, and second: pension loss. We shall deal with each in turn.

1. As for future loss of earnings, the Employment Tribunal considered the Appellant's loss of income in paragraphs 5.31 to 5.35 of its Judgment. At paragraph 5.31, loss of income up to the time of the hearing was considered. Paragraphs 5.32 to 5.35 considered loss of income, from the time of the hearing up to the time the Appellant finds suitable alternative employment. No criticism is made of the Tribunal's findings in relation to these matters. What is said on the Appellant's behalf is that at this point, without reason, the Tribunal stopped in its assessment of the Appellant's loss of income, and neglected to deal with any income loss thereafter, for example loss of income arising from a reduced salary, once in suitable alternative employment.

1. It is said that these losses were identified in the Appellant's written submission and in her witness statement, and that the Tribunal should have dealt with them. However, at paragraphs 3.9 and 3.10 of its decision, the Tribunal concluded on the evidence that in the future the Appellant will only work part-time, namely 25 hours each week. The Tribunal said as follows:

"3.9 So far as her intentions were concerned, the claimant's evidence in her supplemental statement at paragraph 2, that she was intending to work for 25 hours each week, was not challenged. Accordingly, the Tribunal has concluded that she would have been working 25 hours each week from 1 October 2009.

3.10 The Tribunal understands that, because of suffering from lupus, the claimant has resolved she will only work part-time for the future, namely 25 hours each week. The Tribunal noted this appeared to be the premise on which the representatives made their submissions in respect of remedy."

1. There has been no challenge to these findings. At paragraph 5.35 the Tribunal concluded that the Appellant is likely to obtain suitable alternative employment at 25 hours per week in a year's time. We are not satisfied that the Tribunal gave proper consideration to, and made proper findings of fact, in relation to any continuing loss that the Appellant may suffer after she obtains suitable alternative employment, which the Tribunal found would be in a year of the Tribunal hearing.

1. In particular, the Tribunal made no finding, as to the salary that the Appellant would be earning, for the purposes of considering whether there is any continuing loss and calculating any such sum. In our view, this issue should be remitted to the same Employment Tribunal for determination.

1. Turning to the issue of pension loss, the Appellant's case is that the Tribunal erred in applying the simplified approach to calculating pension loss. At paragraph 5.5 of its decision, the Tribunal said:

"5.5 Both representatives refer the Tribunal to paragraphs 4.13 and 4.14 of the Employment Tribunal's publication 'Compensation for loss of Pension Rights', third edition. Both put forward arguments to suggest that the Guide supported their arguments that, on the claimant's side, the Tribunal should adopt the substantial loss approach, while on the respondent's side the Tribunal should adopt the simplified approach. Having considered those paragraphs at some length, the Tribunal has noted that the substantial loss approach may be chosen in cases where the employee has been in the respondent's employment "for a considerable time." The claimant was employed for ten years by the respondent. However, the Tribunal has understood that the expression "considerable time" denotes a time which brings an employee much closer to retirement; so, for example, in the case of the claimant who first started working for the employer when she was 24 years of age, if her employment had been brought to an end when she was nearer to 50. On that basis, the Tribunal has concluded that the appropriate approach for loss of pension rights is the simplified approach."

1. The Appellant submits that there are many reported cases where the substantial loss approach has been used, where the employee is far younger than age 50 and has had far less than 26 years' service. She refers to the case of Network Rail Infrastructure Ltd v Booth [2006] UKEAT/0071/06, where the Appellant in that case was a similar age and had a similar employment history to the Appellant in the present case.

1. The Appellant submits that near to age 50 is not the intended meaning of the phrase "considerable time". She submits that it means time significantly long enough to demonstrate the employee's commitment to the job and to the employer. Miss Cunningham, for the Respondent, refers to the statement in the Guidance that the substantial loss approach is suited to situations where the individual has reached an age where he or she is less likely to be looking for new pastures.

1. She submits that the Network Rail Infrastructure Ltd case does not assist the Appellant. A consideration of the Judgment highlights the differences between the facts of that case and the present case, of which there are far more than the one similarity, namely their age at the date of dismissal. That case, she submits, is authority for no more than the proposition that each case will depend on its particular facts. As the President, Elias J (as he then was) accepted, the Appellant in Network Rail was employed in a very specialist industry in which there was effectively only one employer, namely the Respondent. The Appellant had spent all her working life in the industry, and there was every expectation she would have remained there but for her dismissal.

1. Miss Cunningham submits that the Tribunal in the present case adopted the correct approach. It did not define "considerable time" in terms of length of time worked, rather the length of time available to a dismissed employee to find new work and build up a new pension, during which she should be compensated for losses to the pension in question. Miss Cunningham submits that the case of [Sibbit v Governing Body of St Cuthbert's Catholic Primary School ]()[2010] UKEAT/0070/10 supports the submission that the substantial loss approach is to be used where the dismissal was shortly before retirement. In that case, the Claimant was a teacher who had worked at a school for 23 years and was intending to retire, in any event, a year or so after she was dismissed, shortly after her 60th birthday.

1. In our view, each case must be determined on its facts. We reject the submission made by Mr Kamara on the Appellant's behalf that the fact that she had a final salary pension with the Respondent is material. However, we do consider that the Tribunal needs to review its decision in the light of any decision it takes on continuing loss. It follows that, in our view, this is the only ground on which we consider the decision of the Employment Tribunal may be challenged.

1. We have accordingly decided that the issue of pension loss should be remitted to the same Tribunal for further consideration, following their determination of the issue as to whether or not there is continuing loss. In particular, we draw to the Tribunal's attention, at paragraph 4.14(c) of the Guidance, the question being whether there is continuing loss to retirement which may affect the proper approach to be adopted to loss of pension. We conclude by saying that we are grateful to both advocates for their submissions before us and, in particular, for the support given to the Appellant by the Free Representation Unit.