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Loss of Chance

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What is the correct approach when assessing loss of earnings compensation for constructive dismissal and disability discrimination dismissal?

This was the issue before the EAT in Shittu v Maudsley NHS Foundation Trust.

The Claimant was employed from 2004 until 2016 when he resigned. He was disabled. The Respondent made a deduction from the Claimant's pay for what they considered to be an unauthorised absence when attending a hospital appointment. The Claimant went off sick and lodged grievances in relation to the deduction made from his pay and additional complaints of bullying and harassment. The Respondent dismissed the Claimant's complaints of bullying and harassment and, whilst offering a conciliatory meeting refused the Claimant a right of appeal. The Claimant resigned and issued claims for constructive dismissal and disability discrimination.

The tribunal found in favour of the Claimant but at the remedy hearing only awarded basic pay for unfair dismissal. No compensatory award was made in respect of the unfair dismissal claim nor were damages awarded for loss of earnings under the discrimination claims.

The EAT held that the tribunal approached the issue on the basis of loss of chance. It held the tribunal was, on the facts of the case, entitled to find that there was a 100% chance that the Claimant would have resigned on the same date, absent a fundamental breach of contract by the Respondent. The EAT went on to note that it is only open to a tribunal to refuse to pay compensation for loss of earnings or to limit compensation to a period, as opposed to making a percentage deduction where the tribunal is 100% confident the dismissal would have occurred on the same date as dismissal or the later period it has identified.

The EAT held that the Supreme Court judgment in Perry v Raleys Solicitors does not apply to unfair or discriminatory dismissal claims in the tribunal. That case applies in professional negligence claims; counter factual matters which depend on what the 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 chance.

Thanks to Kate Lea of didlaw for preparing this case summary.