London Underground Ltd v O'Sullivan

A finding that an adjustment would give an employee a real prospect of being put sufficiently on the road to recovery addresses whether the adjustment is reasonable. It does not determine the separate question of the loss caused by its omission, including how long the employee would probably have remained employed.

Compensation for future loss requires an evaluative assessment of the world that would probably have existed without the unlawful act. A tribunal may assess the totality of the evidence and contingencies. It need not reconstruct, step by step, every later adjustment or capability decision that might have arisen. An appellate tribunal should not interfere merely because it might have made a different evaluative judgment.

The claimant, acting for the estate of her deceased husband, was awarded compensation following disability discrimination by London Underground Ltd. The Employment Tribunal found that a four-week period shadowing a Customer Service Assistant would have given him a real prospect of retaining employment. On remedy, it assessed an 80% chance that he would still have been employed when he died four months later.

The employer appealed. It challenged the availability of compensation for death-in-service and dependant pension losses, notwithstanding [2013] EWCA Civ 972, and contended that the 80% assessment was perverse. The central issues were whether the tribunal was bound by the Court of Appeal authority and whether its assessment of the counterfactual future employment position disclosed an error of law or perversity.

1. Appeal dismissed. The Employment Appeal Tribunal was bound by Fox v British Airways plc, [2013] EWCA Civ 972. It therefore rejected the employer's challenge to the recovery by the estate of losses suffered by the claimant and her children. The employer reserved any challenge to that authority for the Court of Appeal.

2. The reasonable-adjustment issue and the compensation issue were distinct. The question whether four weeks' shadowing was a reasonable adjustment was whether it created a real prospect that the employee would be sufficiently on the road to recovery for retention to be reasonable. It did not answer the later counterfactual question of how long he would have remained employed had the adjustment been made.

3. The Tribunal's reference to a relatively low threshold for a “real prospect” did not amount to a finding that the chance of continued employment was below 51%. It was a separate observation about the reasonable-adjustment inquiry. The remedy finding concerned the subsequent period after shadowing and could consistently assess an 80% chance of employment at the date of death.

4. The Tribunal was entitled to treat its reference to a 25% improvement as an illustrative quantification of a sufficiently marked improvement, rather than a mathematical calculation. It could determine the medical and employment question from the totality of the evidence. The absence of definitive specialist prognosis evidence was not fatal.

5. Assessment of future loss and contingencies necessarily involves impression and judgment. The Tribunal was not required to construct and decide a detailed sequence of every further adjustment, review and capability process that might have occurred. There was evidence capable of supporting its conclusion, and no error or perversity justified appellate intervention.

The Tribunal declined to grant permission to appeal to the Court of Appeal, considering that court the appropriate body to determine permission.

• Employment Appeal Tribunal: Appeal dismissed from the Employment Tribunal's remedy judgment. Permission to appeal to the Court of Appeal was refused by this Tribunal.
• Employment Tribunal: Following remission after an earlier appeal in the same proceedings, held that four weeks' Customer Service Assistant shadowing was a reasonable adjustment and awarded remedy, including compensation assessed on an 80% chance of continued employment at death.