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

In assessing compensation for future earnings loss, an Employment Tribunal may use the Ogden tables or another just and equitable method. It does not err merely because it adopts a different method, provided its approach is demonstrable and reaches a permissible assessment of the loss.

Reasons must be read fairly and as a whole. A reference to inflation did not establish an unlawful inflationary uplift where the reasons consistently showed that the Tribunal had allowed for anticipated annual wage increases and promotion prospects. The Tribunal had also permissibly allowed for mortality, accelerated receipt and other contingencies without double counting.

The claimant, formerly a development officer for the respondent trade union, succeeded before the Newcastle-upon-Tyne 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 earnings loss after a contingency deduction.

The respondent appealed the remedy judgment. It contended that the Tribunal should have used the Ogden tables and had impermissibly increased the award for inflation. The central issue was whether the Tribunal’s alternative calculation of future loss of earnings disclosed an error of law.

1. Appeal dismissed. The Employment Tribunal’s assessment of future earnings loss was a permissible exercise of its discretion and disclosed no error of law.

2. The Tribunal was not required to use the Ogden tables. Wardle v Credit Agricole, [2011] ICR 1290, permitted a career-long assessment in an appropriate case, although that would be unusual. A Tribunal may instead adopt another demonstrable method that achieves a just and equitable assessment. The Tribunal had reduced the period of loss to reflect mortality and accelerated receipt, then made a further 30% deduction for other contingencies.

3. The reference to “inflation” in the refusal of a review application did not show that the Tribunal had increased the multiplicand by general inflation. The reasons and incorporated schedule repeatedly described a 2.5% annual increase in salary and wages. Read as a whole, they showed an allowance for anticipated pay increases and possible career progression, rather than an impermissible inflationary uplift.

4. The Tribunal had taken account of accelerated receipt, mortality and contingencies. Its approach did not double count those matters. Appellate review of Employment Tribunal reasons must not be unduly technical or pernickety.

• Employment Appeal Tribunal: dismissed the respondent’s appeal: [2013] UKEAT 0504_12_2904.
• Employment Tribunal, Newcastle-upon-Tyne: upheld claims for constructive unfair dismissal and disability discrimination in a reserved judgment dated 15 December 2011. At a remedies hearing, reasons sent on 25 June 2012 awarded £390,272.40 compensation.