The claimant had made wide-ranging allegations of detriment arising from discrimination, victimisation and harassment and constructive unfair dismissal for breaches of contract. The ET found that only one of the allegations was proven: the respondent had unlawfully deducted a day’s pay when the claimant attended hospital for a post-cancer check up. In the remedy hearing, the claimant was given the basic award but applying Polkey principles the panel found the claimant would have resigned even if he had not had wages deducted and so loss of earnings arose.
In this appeal, Stacey J reviews the case law around the application of Polkey (including Zebrowski, O’Donoghue, Perry and Software 2000) before concluding at [79] that the tribunal was “correct to seek to identify what losses were attributable to unlawful conduct – whether discrimination or unfair dismissal – and what were not” and that they had not conducted a balance of probabilities test but had instead concluded that there was a 100% chance he would resign. She then goes on to discuss whether [88-102] in the light of Perry the tribunal had been entitled to take this approach and concludes that

“Perry does not overturn the development of 50 years of case law on the assessment of counterfactual and future losses in employment claims before the tribunal that is to be approached on the evaluation of the loss of a chance.”