UCATT (Union of Construction Allied Trades & Technology) v Short

An Employment Tribunal assessing compensation for unfair dismissal and disability discrimination is not required to use the Ogden tables. It may instead adopt another demonstrable method which produces a just and equitable assessment of future loss.

Future earnings may reflect evidenced or permissible anticipated wage increases and career progression. That differs from an impermissible inflationary uplift to a trial-date multiplicand. Reasons must be read fairly and as a whole. A single infelicitous reference to inflation will not establish legal error where the reasons consistently show that the Tribunal assessed salary increases.

The Claimant succeeded before the Employment Tribunal in claims for constructive unfair dismissal and disability discrimination under the Equality Act 2010. The Tribunal awarded total compensation of £390,272.40, including £194,950 for future loss of earnings after a 30% deduction for contingencies.

UCATT appealed the method used to assess that future loss. It contended that the Tribunal should have used the Ogden tables and had wrongly included an annual 2.5% inflation uplift. The central issue was whether the Tribunal’s calculation disclosed an error of law.

1. Appeal dismissed. The Tribunal’s assessment of £194,950 for future loss of earnings was a permissible and just and equitable assessment. It was not obliged to use the Ogden tables.

2. [2011] ICR 1290 established that a career-long assessment will be rare, but it remains open to a Tribunal. More generally, a Tribunal may use either an Ogden-based method or another demonstrable method, provided its overall assessment is just and equitable. The Tribunal had allowed for mortality and accelerated receipt by limiting the period of loss, and separately made a 30% deduction for other contingencies. There was no double counting.

3. The reasons, including the refusal of a review, had to be read as a whole and without an over-fussy approach. Although the review decision used the word “inflation” once, the reasons repeatedly referred to salary, earnings and wages. They showed that the 2.5% figure represented anticipated annual wage increases for a union officer, including possible progression, rather than an impermissible inflationary increase to the multiplicand.

4. The same conclusion applied to the assumed increase in the national minimum wage. It was used as a wage-related deduction in the calculation, not as an inflation adjustment. The Employment Tribunal therefore made no error of law.

• Employment Appeal Tribunal: UCATT’s appeal against the remedy award was dismissed.
• Employment Tribunal, Newcastle-upon-Tyne: In a reserved judgment dated 15 December 2011, it upheld claims for constructive unfair dismissal and disability discrimination. At a remedies hearing, with reasons sent on 25 June 2012, it awarded £390,272.40, including future earnings loss.