DISABILITY DISCRIMINATION – Compensation
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 decision of the Tribunal following a remedies hearing was appealed by the Respondent employer and was also the subject of an appeal and cross-appeal by the Claimant.
On the various issues for determination:
(1) The law on the insurance exception to the principle of deducting avoided loss in the calculation of damages is as set out by the Court of Appeal in Gaca v Pirelli General plc [2004] 1 WLR 2683. There was evidence before the Tribunal that was sufficient to support a conclusion that the Claimant had contributed indirectly to the PHI policy taken out by the employer and the decision to deduct from loss of earnings only 50% of the payments he had received should not be interfered with;
(2) In adding to the Claimant’s award sums representing the redundancy and notice payments the Claimant would have received had he been able to work and subject to redundancy in 2013, the Tribunal had erred by failing to take into account that these were sums that the Claimant has not lost and may still be entitled to. To that extent the Claimant’s condition had resulted in his avoiding the loss for which the Tribunal had sought to compensate him and the appeal would be allowed to the extent of deducting those sums from the overall award;
(3) The Tribunal had erred in finding that the Claimant’s receipt of PHI payments would cease for reasons other than his ability to work, but that finding could be deleted while leaving standing the Tribunal’s general conclusions on his ability to recover and return to work;
(4) The Tribunal had been entitled on the available evidence to reach the conclusions it did on the anticipated period of the Claimant’s recovery, the level of his future earnings and to take account of the risk of relapse as part of the exercise of making a broad estimate in relation to those matters; but
(5) The Tribunal had erred in approaching apportionment by reference to the division of events into those caused by the Respondent’s discriminatory acts and those that were not so caused rather than by looking at the Claimant’s condition and assessing whether it was divisible and if so how much of the harm suffered had been caused by the Respondent’s discriminatory acts. The correct approach having been confirmed by the Court of Appeal in BAE Systems (Operations) Ltd v Konczak [2017] EWCA Civ 1188, the matter would be remitted back to the Tribunal for assessment of the issue of apportionment using the correct approach.
Appeal and cross-appeal both allowed in part.
Judges:
Wise L
Citations:
[2018] UKEAT 0023 – 17 – 0406
Links:
Jurisdiction:
England and Wales
Discrimination, Damages
Updated: 22 April 2022; Ref: scu.616895