EAT (Sex Discrimination: Other Losses) There were 3 appeals (2 by Dundee, the other by the Claimant) in relation to an ET’s assessment of the loss of wages the Claimant had suffered as a result of illness caused by discrimination against her in 2001. The ET decided in January 2015 that it did not accept the Claimant’s case that she would have become a Lab Technician employed by the University, losing the wages and pension that went with it, since the Claimant had produced too little evidence. In particular, there was nothing to show that there was a vacancy. She had not argued for any alternative job, though had said generally that she would do whatever was necessary. The ET noted that she had never been out of work, had taken part-time additional work at Asda as a check-out operative, had skills and qualifications, and needed to work to pay her mortgage and bills, and had had no problems at Asda working part-time over 5 years. It surmised that (on the basis there was no Lab technician post for her) she would have applied to Asda for full-time checkout work, would have been successful after some 3 years in obtaining such a job, and that loss of earnings should be assessed on that basis. Dundee sought a reconsideration because it had had no chance to meet the ‘full-time Asda’ case in evidence or submission, since the Claimant had never specifically advanced it. The ET granted the reconsideration, at which it confirmed its earlier decision, but in doing so allowed the Claimant to advance evidence as to a full-time Asda case which she had not advanced at the January hearing.
Dundee appealed against the January decision on the basis that the ET had impermissibly made a case for the Claimant she was not making for herself, that the decision was speculative, and there was insufficient proof of loss. It appealed against the decision to hold a reconsideration, because by doing so the ET permitted the Claimant to advance evidence which finality demanded should have been advanced in January and not as a second bite of the cherry at a later stage. The Claimant appealed on the basis that the ET should have awarded losses on the basis of a Lab technician’s post, had placed the burden and standard of proof too high, and had approached the issue as one which needed evidence of probabilities not (as it should have done) of chances.
Held: Contrary to Dundee’s submissions, the issue (as to what was the loss) was before the ET, having been remitted to it to determine. The ET was entitled to conclude at the January hearing and on the basis of the evidence then before it that there was a high likelihood that the Claimant would have done some work had she been fit. There was sufficient evidence before it to allow it to conclude that a proper, if conservative, evaluation of the loss of earnings by inability to do that work was on the basis of full-time check-out earnings at Asda over the relevant period. Although the ET was in error in not putting Dundee in a position to answer the full-time Asda case at the January hearing, it rectified the error by holding a reconsideration at which Dundee could put forward any evidence it wished as to Asda, and could make submissions. The ET should not have allowed evidence to be given in chief by the Claimant at that hearing, as it did, even though Dundee had asked to be able to cross-examine her, but it was not in error of law in ordering a reconsideration hearing. The error was, rather, a legal failure at that hearing, and no appeal was raised separately in respect of the hearing itself. In any event, the decision of the EAT was reached by considering whether there was an error in the January judgment on the basis of what was advanced before the ET on that occasion, and it held that sufficient.
Langstaff P J
[2016] UKEAT 0021 – 15 – 0902
Bailii
England and Wales
Employment, Damages
Updated: 12 January 2022; Ref: scu.560981