Scope v Thornett: CA 27 Nov 2006

The employee was an engineer. She worked on field assessments and in the manufacture and adaptation of equipment. She was suspended for alleged bullying and harassment and given a final written warning. It was proposed that she should be relocated to another office, but she refused. She was told that she had resigned. The Tribunal found an unfair dismissal. A reasonable employer would not have insisted on the transfer, but there was 25% contributory fault. Further if they had tried to make it work, it would have lasted only about six months. Compensation was limited on that basis. The EAT held that there was no proper basis for concluding that the employment would be limited to six months in the future, it was ‘a highly speculative matter’, and this demonstrated that it had ‘launched upon a sea of speculation’ which is precisely what King v Eaton and subsequent authorities show that it should not do. The compensation should have been assessed on the assumption that the post would last indefinitely.
Held: The employer’s appeal succeeded. There was a body of evidence capable of justifying the Tribunal’s conclusion and they were in principle right to assess the loss in the way they had done. On the facts of this case the court held that the reasoning of the Tribunal was opaque and it was impossible to be clear why they had fixed on a period of 6 months. That was in principle a justifiable conclusion, but it was not clear how that figure had been arrived at. Accordingly, the case was remitted.
Pill LJ said that appellate courts should be wary of interfering with the Employment Tribunal’s conclusions on this matter of judgment. As to the criticism that the Tribunal had been improperly speculating: ‘The EAT appear to regard the presence of a need to speculate as disqualifying an employment tribunal from carrying out its statutory duty to assess what is just and equitable by way of compensatory award. Any assessment of a future loss, including one that the employment will continue indefinitely, is by way of prediction and inevitably involves a speculative element. Judges and tribunals are very familiar with making predictions based on the evidence they have heard. The tribunal’s statutory duty may involve making such predictions and tribunals cannot be expected, or even allowed, to opt out of that duty because their task is a difficult one and may involve speculation.’


Pill LJ, Laws LJ, Gage LJ


[2006] EWCA Civ 1600, [2007] IRLR 155, [2007] ICR 236




England and Wales


Appeal fromCarole Thornett v Scope EAT 7-Feb-2006
EAT Unfair Dismissal: Compensation
Compensation for unfair dismissal was capped at 6 months’ forward losses on the ground that the Claimant would have been dismissed at that stage. Since the parties could . .
CitedMoeliker v Reyrolle and Co Ltd CA 1976
The court considered the principles for the award of damages for future loss of earning capacity.
Held: The court distinguished between an award for loss of earnings and compensation for loss of earning capacity. The latter head of damage . .

Cited by:

CitedSoftware 2000 Ltd v Andrews etc EAT 17-Jan-2007
EAT Four employees successfully established before the Employment Tribunal that they had been unfairly dismissed for redundancy. The Tribunal found that there had been procedural defects. In particular the . .
CitedPunch Pub Company Ltd v O’Neill EAT 23-Jul-2010
Reasonableness of dismissal
Procedural fairness/automatically unfair dismissal
The Employment Tribunal failed to consider the effect of S98A(2) of the Employment Rights Act . .
CitedCumbria County Council and Another v Bates EAT 13-Aug-2013
The Claimant was employed by the First Respondent as a teacher at Dowdales School. He was found to have been unfairly dismissed. Post dismissal he was convicted of common . .
Lists of cited by and citing cases may be incomplete.


Updated: 08 July 2022; Ref: scu.246727