Griffin v Plymouth Hospitals Nhs Trust

In assessing compensation for disability discrimination and unfair dismissal, an Employment Tribunal must address any continuing earnings loss after the claimant obtains suitable alternative employment. It must make findings about the likely salary in that employment before deciding whether such loss exists.

The appropriate method for calculating pension loss is fact-sensitive. The existence of a final salary pension does not determine whether the simplified or substantial loss approach should be used. The Tribunal should reconsider the pension calculation in light of its findings on continuing loss, including the guidance concerning loss continuing to retirement.

The Employment Tribunal found that the Respondent had discriminated against the Appellant by failing to make reasonable adjustments and had constructively unfairly dismissed her. At a remedies hearing, it assessed future loss of earnings and pension loss.

The Appellant appealed, arguing that the Tribunal had stopped its earnings-loss assessment when she obtained suitable alternative employment and had wrongly adopted the simplified approach to pension loss. The central issues were whether further findings were required concerning continuing earnings loss and whether the pension-loss approach required reconsideration.

1. Future loss of earnings. The Tribunal had found that the Appellant would work 25 hours per week and would obtain suitable alternative employment within approximately one year. It had not determined the salary she would receive in that employment. Without that finding, it could not properly assess whether a continuing loss would remain after re-employment or calculate any such loss. The issue was remitted to the same Tribunal.
2. Pension loss. The choice between the simplified and substantial loss approaches must be determined on the facts of each case. The Tribunal was wrong to treat the existence of a final salary pension as material to that choice. Nevertheless, the pension-loss decision was to be reconsidered only after the issue of continuing earnings loss had been determined.
3. The Tribunal was specifically directed to consider paragraph 4.14(c) of the guidance, concerning whether loss continued to retirement and how that affected the proper approach to pension loss.

The relevant issues were remitted to the same Employment Tribunal for further consideration.

• Employment Tribunal: found disability discrimination, failure to make reasonable adjustments and constructive unfair dismissal, then assessed compensation at a remedies hearing.
• Employment Appeal Tribunal: remitted the issues of continuing earnings loss and pension loss for further consideration.