Griffin v Plymouth Hospital NHS Trust

An Employment Tribunal's assessment of future earnings and pension loss is a fact-sensitive exercise. It may adopt a structured period-by-period approach to likely future employment and progression, provided it considers the available methods and explains its reasoning.

The Ogden Tables are not compulsory. Although career loss may ordinarily create a prima facie case for their use, a tribunal may assess loss without them. The pension-loss Guidance is likewise not determinative. An appellate court will not interfere merely because the assessment involves prediction and speculation, unless it is perverse or wrong in principle.

The Claimant had succeeded in claims of disability discrimination and unfair dismissal. Following an earlier remedy award, a previous Employment Appeal Tribunal remitted the issues of continuing earnings loss and pension loss for reconsideration.

On remission, the Employment Tribunal awarded substantially increased compensation. It assessed future loss over 12 years, using stages of likely employment and progression. The Claimant appealed again, contending that the Tribunal had inadequately addressed the medical evidence, wrongly relied on her voluntary work, and failed to use the Ogden Tables and pension-loss Guidance.

The central issue was whether the remitted Tribunal had made an error of law in assessing future losses.

1. Appeal dismissed. The Employment Tribunal made no error of law in its assessment of continuing earnings loss or pension loss.
2. The Tribunal was not required to rehearse every item of medical evidence in its reasons. It had made unchallenged findings concerning the Claimant's condition and had considered the medical evidence across the liability and remedy judgments. Its reference to the report placed in prominence in the submissions did not show that it had overlooked the remaining evidence.
3. A tribunal should take care in a disability case not to base its assessment solely on a claimant's presentation at the hearing, since medical conditions may fluctuate. Here, however, the conclusion that the Claimant could progress in employment rested also on her evidence, the managers' evidence and the Tribunal's findings as to her abilities and determination.
4. The Ogden Tables were not mandatory. The Tribunal could choose how to calculate pension loss, and the pension-loss Guidance was not determinative. It had permissibly adopted a structured assessment of likely work, earnings and progression over successive periods.
5. A 12-year assessment of future loss necessarily involved some prediction about the claimant, the labour market and mitigation. Those were factual matters for the Tribunal. Its award was neither perverse nor wrong in principle.

• Employment Appeal Tribunal: The appeal from the remitted remedy judgment was dismissed.
• Employment Appeal Tribunal: An earlier appeal resulted in a remittal for review of continuing earnings loss and pension loss; no citation is stated in the judgment.
• Employment Tribunal: The Claimant succeeded on liability for disability discrimination and unfair dismissal. The subsequent remedy decision was reconsidered on remittal.