Dundee City Council v Malcolm

Assessment of compensation for future earnings loss requires an evaluation of chances, rather than proof on the balance of probabilities of a hypothetical future job. A tribunal may make a conservative assessment where the evidence establishes a real prospect of remunerative work, even if it does not establish the precise employment that would have been obtained.

A tribunal must not formulate a distinct case for a party. It may, however, investigate aspects of a broadly pleaded or remitted issue which have not been advanced in detail, provided that it remains impartial and decides on the evidence. Reconsideration may properly cure a party's lack of a fair opportunity to address a material basis of decision, but it is not generally a means to introduce evidence that could have been adduced earlier.

The claimant established that the Council had discriminated against her in 2001, causing illness which prevented her from working between 2002 and 2013. The Employment Tribunal was remitted the questions of the work she would otherwise have done, her earnings and pension loss.

In January 2015, the Tribunal rejected her case that she would have obtained laboratory-technician employment. It nevertheless assessed her wage loss on the conservative basis that she would probably have obtained full-time checkout work at Asda after 2005. The Council sought reconsideration because it had not had an opportunity to challenge that basis. The Tribunal ordered a reconsideration and later confirmed its award.

The Council appealed the January award and the order for reconsideration. The claimant appealed the rejection of her claimed laboratory-technician loss. The central issues were the permissible scope of the Tribunal's assessment and the evidential approach to hypothetical future earnings.

1. All three appeals were dismissed. The issue remitted to the Employment Tribunal was the claimant's loss of earnings generally. It was therefore open to the Tribunal to assess what remunerative work she would have done, notwithstanding that she had not specifically advanced a claim based on full-time Asda employment.

2. The assessment of loss arising from a hypothetical future is an assessment of chances, not a finding of historical fact on the balance of probabilities. The claimant did not have to establish a better-than-even chance of a particular job. The Tribunal could not award compensation on a fanciful or negligible possibility, but it could make a proportionate estimate where there was evidence of a real prospect of employment.

3. There was sufficient evidence for the Tribunal to find that the claimant was highly likely to have undertaken some paid work. Her sustained work history, qualifications, financial need and successful part-time Asda work supported that conclusion. The Tribunal was entitled to use its local labour-market knowledge that full-time supermarket checkout vacancies occurred regularly. Its three-year delay assumption and low earnings basis made its assessment conservative rather than speculative.

4. A tribunal must not enter the arena by creating a separate case for a litigant. However, where a complaint is broadly pleaded, or the issue has been remitted in broad terms, it may investigate an unparticularised aspect of that issue. It is not obliged to do so, but does not err in law merely by doing so.

5. The January decision was procedurally irregular because the Council had not been invited to address the full-time Asda basis. The reconsideration order properly afforded it an opportunity to cross-examine, adduce evidence and make submissions. The Tribunal should not then have permitted the claimant to give fresh evidence in chief, but that was an irregularity at the later hearing and was not the subject of an outstanding appeal. The claimant's appeal also failed: the Tribunal was entitled to find no real or substantial chance of laboratory-technician employment on the evidence before it.

• Employment Appeal Tribunal: all three appeals from the Employment Tribunal's January and March 2015 decisions were dismissed.
• Employment Tribunal: the January 2015 remedy decision awarded £17,946.96 for earnings loss, assessed by reference to full-time Asda checkout employment. A March 2015 decision ordered reconsideration; following a May hearing, the Tribunal confirmed the January award.
• Earlier Employment Appeal Tribunal proceedings: the remedy issue was remitted after it was established that the Council was liable for discrimination and that the claimant was unable to work between 2002 and 2013. The citation is not stated in the judgment.