Fletcher-Cooke v Hampton School

In assessing compensation for future loss of earnings, a tribunal should place the claimant in the position they would have occupied absent unlawful conduct. Where future events are uncertain, the assessment should use percentage chances rather than an all-or-nothing approach. At the permission stage, detailed challenges to the tribunal’s factual assessment need not be resolved. Permission should be granted where a sufficient case is shown for full consideration.

The claimant succeeded before the Employment Tribunal on liability for disability discrimination and discriminatory dismissal. Following a remedies hearing, the tribunal assessed future loss of earnings. The Employment Appeal Tribunal, presided over by His Honour Judge Reid QC, dismissed the claimant’s appeal and refused permission to appeal on 15 February 2007.

The claimant applied to the Court of Appeal for permission to appeal. He argued that, although the Employment Tribunal had stated the correct legal approach, it had made factual findings about future events inconsistent with an assessment based on percentage chances.

1. Permission granted. The Court of Appeal held that a sufficient case had been shown for permission to appeal. The detailed challenges to the Employment Tribunal’s reasoning on future loss were reserved for an inter partes hearing before a full court.
2. For the purposes of the application, the court accepted that the Employment Tribunal had correctly stated the relevant law. Compensation should place the claimant in the position they would have occupied but for the unlawful conduct.
3. Where future loss depends on uncertain events, compensation should be assessed by reference to percentage chances. The tribunal should not adopt an all-or-nothing approach. The issue requiring full argument was whether the Employment Tribunal had departed from that self-direction when making findings about future events, producing a materially lower award.
4. The approach to compensation for loss of earnings was discussed in Ministry of Defence v Cannock [1994] ICR 918 and subsequently approved by the Court of Appeal in Vento v Chief Constable of West Yorkshire Police [2003] ICR 318.
5. The court considered the issue difficult and noted the limited employment-law authority, particularly in disability discrimination cases involving future employment prospects after discriminatory dismissal. Lord Justice Laws agreed with Lord Justice Mummery. The application was granted, with directions for a one-day hearing before three Lords Justices.

• Employment Tribunal: Liability for disability discrimination and discriminatory dismissal was established on 9 June 2005. Reasons following the remedies hearing were sent to the parties on 12 May 2006.
• Employment Appeal Tribunal: His Honour Judge Reid QC dismissed the claimant’s appeal and refused permission to appeal on 15 February 2007.
• Court of Appeal (Civil Division): Permission to appeal was granted and directions were made for a full hearing.