Practice and Procedure


PUBLISHED June 5, 2003

The approach to future loss was to assess the "chance" that the respondent had of remaining in service with the appellant until the age of 65, and then discounting the full compensation by that chance.Appeal from an employment tribunal's decision regarding the sum of compensation awarded to the respondent ('N'). N was employed by the appellant ('the council') as a chartered management accountant. In March 1995, she began to develop back pains and headaches. The ailments degenerated and caused her considerable problems. The council made some adjustments such as providing N with a new desk and chair. Save for that concession, the council had failed to take any real steps to accommodate her disabilities. Consequently, at N's suggestion, she was retired on grounds of ill health. N submitted that the council had failed to make reasonable adjustments for her under s.6 Disability Discrimination Act 1995. The employment tribunal held that the council had discriminated against N on grounds of disability. It awarded approximately ?284,000 in compensation. The council argued that the employment tribunal had erred in assessing future loss by holding that N would have remained in employment with the council until retirement age.HELD: The employment tribunal's task was to assess the "chance" that N would have suffered the future loss. In error, the employment tribunal had simply focused on primary facts in order to establish how long N would have remained in employment with the council but for the discrimination. The correct approach was well established in Ministry of Defence v Cannock & Ors (1994) ICR 918 and approved in Angela Vento v Chief Constable of West Yorkshire Police (2003) IRLR 103. Therefore, the employment tribunal should have made an assessment of the "chance" N had of remaining in service with the council until the age of 65, and discounted the compensation by that chance. It should also have been alerted to the inevitable uncertainties as to the length of N's future employment. Accordingly, the employment tribunal's decision in assessing the "chance" of N remaining in employment was irrational and perverse.Appeal allowed. Remitted to a fresh employment tribunal for a remedies hearing.