Aramark Ltd v Graham

In assessing compensation for future loss, an Employment Tribunal must determine the likely counterfactual course of employment had there been no unlawful dismissal or discrimination. It must take account of material risks and uncertainty, including the possibility that employment might have ended for other reasons. A broad-brush reduction is permissible where it reflects findings properly made on the evidence.

On costs, there is no requirement to prove a precise causal link between particular unreasonable conduct and particular costs. The Tribunal must identify the unreasonable conduct and consider its nature, gravity and effect in the whole circumstances. An appellate tribunal should not interfere with that discretionary assessment absent an error of legal principle or an obviously wrong result.

The claimant, who had cerebral palsy and learning difficulties, succeeded before the Employment Tribunal in claims of disability discrimination, harassment, failure to make reasonable adjustments and constructive unfair dismissal.

At remedies hearings, the Tribunal awarded compensation for injury to feelings, past loss and future loss, together with £7,500 costs. It found that, absent the unlawful treatment, the claimant would probably have continued in part-time work after the catering service returned to the Salvation Army, but applied a two-year reduction to future loss to reflect the possibility that her employment might end before retirement.

The employer appealed the future-loss assessment and the costs order. It contended that the Tribunal had insufficiently allowed for redundancy, the claimant’s ability to perform changed duties, ordinary contingencies of life, and the absence of a causal link between unsuccessful settlement conduct and remedy-hearing costs.

1. Appeal dismissed. The Employment Tribunal made no error of principle in awarding future loss for five and a half years.

2. The compensatory exercise required the Tribunal to consider what would probably have occurred had there been no unlawful discrimination or constructive dismissal. It had done so. Its findings were that the redundancies resulting from the changed catering service affected chefs rather than food-service assistants; that the claimant would have transferred back to the Salvation Army; and that another part-time assistant and other measures could have accommodated the claimant’s limitations.

3. Those findings entitled the Tribunal to treat the redundancy and work-capability risks as small. The Tribunal was also entitled to make a broad-brush reduction from the period to retirement. Although it did not expressly use the phrase “vicissitudes of life”, its reference to the small possibility of employment ending for a variety of reasons, and to all ways in which loss might be limited, showed that it had addressed that contingency. Its factual conclusions were not challenged as perverse.

4. The costs appeal also failed. Applying the guidance in [2012] IRLR 78 and [2004] IRLR 558, the EAT held that a costs order for unreasonable conduct does not require proof of a precise causal link between that conduct and identified costs. The Tribunal could consider the whole picture, including the employer’s failure to engage with detailed settlement proposals and its unreasonable resistance to the claim. It had exercised its discretion lawfully.

• Employment Appeal Tribunal: dismissed the employer’s appeal: [2013] UKEAT 0164_12_0306.
• Employment Tribunal, East London Hearing Centre: found disability discrimination, harassment, failure to make reasonable adjustments and constructive unfair dismissal; subsequently awarded compensation and costs in remedies judgments sent on 15 December 2011 and 6 July 2012.