Shittu v South London and Maudsley NHS Foundation Trust (Unfair Dismissal, Disability Discrimination): EAT 13 Jul 2021

The Appeal Tribunal was asked to consider the Employment Tribunal’s approach to the assessment of loss of earnings compensation and remedy for constructive unfair dismissal and disability discrimination dismissal. The issues were firstly whether the Employment Tribunal (ET) had assessed loss on the balance of probabilities or on the basis of the loss of a chance. If it had been the former, the second issue was whether it was entitled to take that approach in a claim of constructive dismissal in light of Perry v Raleys Solicitors [2020] AC 352, [2019] UKSC 5.
Held: On a proper reading of the tribunal’s judgment it had approached the issue on the basis of a loss of a chance and on the facts of the case was entitled to find that there was a 100% chance that the claimant would have resigned on the same date, absent the fundamental breach of contract by the respondent that had led him to succeed in his unfair constructive and discriminatory dismissal claim.
As per O’Donoghue v Redcar and Cleveland Borough Council [2001] EWCA Civ 701; [2001] IRLR 615 and Zebrowski v Concentric Birmingham Limited UKEAT/0245/16, it is only open to an ET to refuse to award any loss of earnings compensation, or to limit compensation to a period, as opposed to making a percentage deduction where the tribunal is 100% confident that dismissal would have occurred on the same date as dismissal, or the later period it has identified. The ratio of the supreme court in professional negligence claims in Perry that counter factual matters which depend upon what a client/claimant would have done absent the tortious act are to be decided on the balance of probabilities, whereas matters which depend upon what a third party would have done are to be assessed on the basis of a loss of a chance [20] does not apply to unfair or discriminatory dismissal claims in the tribunal.
As was said in Gover v Propertycare Ltd [2006] EWCA Civ 286, [2006] ICR 1073 and Zebrowski the statutory language is open textured and it would be wrong to introduce a complex structure of subsidiary rules which is not supported by the statutory language and which would not assist in the difficult task of accurately and fairly calculating losses. 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.


The Honourable Mrs Justice Stacey DBE


[2021] UKEAT 2020-000575




England and Wales


Updated: 04 June 2022; Ref: scu.677773