Daly v Northumberland Tyne and Wear NHS Foundation Trust

Assessment of future loss of earnings necessarily involves informed speculation. An appellate tribunal must not substitute its own assessment where the Employment Tribunal had some evidence on which it could permissibly find that the claimant would regain equivalent earnings within the assessed period.

A broad-brush assessment of interim earning capacity is permissible, but it must have an evidential basis. Where the tribunal gives no indication of the work the claimant could undertake or the earnings it attributes to that work, its assessment cannot stand and the issue should be remitted.

The claimant had succeeded before the Employment Tribunal in claims for failure to make reasonable adjustments, discrimination arising from disability and harassment. At the remedy stage, the Tribunal awarded financial loss, including a sum for future loss of earnings.

The claimant appealed the Tribunal’s conclusion that he would recover equivalent earnings within 12 months of the relevant recovery period. He also challenged its assessment of what he could earn during the preceding period before he regained full earning capacity. The central issues were whether the future-loss finding was unsupported by evidence and whether the interim-earnings assessment had an evidential basis.

1. Appeal allowed in part. The first ground, challenging the conclusion that the claimant would recover equivalent earnings within the specified period, was dismissed. The second ground was allowed and the assessment of earnings before recovery of full earning capacity was remitted to the same Employment Tribunal.
2. Future loss is necessarily an exercise in informed speculation. The Tribunal had accepted the psychiatric evidence concerning treatment and recovery. It also had evidence from an experienced NHS workforce officer about available employment and a list of vacancies. That material was limited and imperfect, but it was some evidence from which the Tribunal could permissibly find, on the balance of probabilities, that the claimant could recover equivalent earnings within the period found.
3. The Employment Appeal Tribunal’s function was not to substitute its own view or second-guess the Tribunal’s assessment of the claimant, his abilities and the local employment market. The finding was therefore not shown to be unsupported by evidence.
4. The interim-earnings assessment was different. Although a broad-brush approach may be appropriate, the Tribunal had identified neither the work the claimant might undertake nor the earnings he could receive before regaining full earning capacity. No evidential foundation supported the figure. The issue was remitted so that the Tribunal could determine the claimant’s interim earning capacity on the available evidence and reconsider the lump sum if necessary.

• Employment Appeal Tribunal: allowed the appeal only on the assessment of interim earnings and remitted that issue to the same Employment Tribunal.
• Employment Tribunal, Newcastle: remedy judgment of 23 July 2014 awarded compensation for financial loss, including future loss of earnings. An earlier liability judgment dated 9 January 2014 had upheld claims for failure to make reasonable adjustments, discrimination arising from disability and harassment.