Griffin v Plymouth Hospital NHS Trust

In assessing compensation on a remittal, an employment tribunal must consider all information relevant to the issue remitted, including subsequent facts which bear on that issue. Later evidence offered to reopen a final assessment on a different issue remains subject to the principles governing finality and subsequent events.

In pension-loss claims, the choice between the simplified and substantial-loss approaches depends on the particular facts. The tribunal must assess whether the employee was likely to remain in the former pension scheme until retirement; age alone is not decisive. Recovery of comparable earnings does not necessarily eliminate continuing pension loss. The relevant guidance has no statutory force and must be applied critically.

The Claimant succeeded before the Employment Tribunal in claims for constructive unfair dismissal and disability discrimination arising from the Trust’s failure to make reasonable adjustments. The Tribunal awarded compensation, including future earnings and pension loss. On an earlier appeal, the Employment Appeal Tribunal remitted the question of continuing loss of earnings.

On reconsideration, the Tribunal found that the Claimant would recover her previous level of earnings over 12 years and retained its use of the simplified approach to pension loss. The EAT dismissed her further appeal. The central issues before the Court of Appeal were whether the Tribunal had wrongly excluded subsequent evidence, whether its 12-year earnings assessment was legally unsustainable, and whether it had erred in selecting the simplified pension-loss approach.

1. Future earnings. The appeal was dismissed on the award for loss of earnings. On a remittal, the primary assessment of compensation has not been concluded, so the Bwlfa principle requires the tribunal to consider all information available at the remitted hearing that is relevant to the issue remitted. Evidence relevant only to reopening a final assessment on another issue is subject to the discretionary principles stated in Mitchell v Mulholland, including finality and the exceptional admission of subsequent events.
2. The Shelter documents added nothing material to the remitted question of the Claimant’s likely remuneration. The Tribunal was not asked to revisit the date on which she would obtain employment and, even if it had been, that date was an estimate within the area of uncertainty in the original assessment. The Tribunal’s broad-brush 12-year assessment of future earnings was open to it on the evidence and was not legally perverse. The error in relying on the Claimant’s work at Shelter as an indication of her ability to withstand stress was immaterial.
3. Pension loss. The appeal was allowed on this issue. The Tribunal had misdirected itself by treating the Claimant’s age and the phrase “considerable time” in the Guidance as decisive, without considering whether she was likely to remain in the NHS and in the former scheme until retirement. Its own finding that a 20% withdrawal discount was appropriate was inconsistent with the conclusion that the uncertainties were too great for the substantial-loss approach.
4. The later reasoning that there was no ongoing loss because the Claimant would regain comparable earnings was also flawed. Comparable salary does not necessarily provide a comparable pension. The Tribunal’s finding that she would obtain a final-salary scheme after four years lacked evidential support and failed to address unchallenged expert evidence that a future employer was unlikely to offer such a scheme.
5. The Guidance is valuable but has no statutory force. Its recommendations must be applied critically, particularly in light of changes in pension law and practice since 2003. The pension-loss issue was remitted to the same Tribunal for assessment using the substantial-loss approach.

1. Court of Appeal (Civil Division) — [2014] EWCA Civ 1240: appeal dismissed as to future loss of earnings, allowed as to pension loss, and the pension-loss issue remitted to the Employment Tribunal.
2. Employment Appeal Tribunal — UKEAT055412LA: dismissed the Claimant’s appeal against the Tribunal’s second remedy decision.
3. Employment Appeal Tribunal — an earlier appeal was allowed and the issue of continuing loss of earnings was remitted to the same Employment Tribunal. No citation for that decision is stated in the judgment.
4. Employment Tribunal — upheld the claims and awarded compensation, later increasing the award on remission.