Qu v Landis & Gyr Ltd (Rev 1)

Assessment of future loss after a discriminatory dismissal is a predictive and speculative exercise. The tribunal must make its best assessment of the relevant chances and uncertainties. It must not treat the issue as a binary balance-of-probabilities finding.

A tribunal may limit loss to the point at which equivalent employment is likely to be obtained, or when employment would in any event have ended for non-discriminatory reasons. The claimant bears the burden of proving any continuing differential in pension, bonus or other benefits.

An ACAS Code of Practice uplift may be reconsidered where an earlier decision overlooked distinct procedural failures. A modest uplift may be justified where there was a process but it failed to comply with the relevant Code.

The claimant was unfairly and discriminatorily dismissed from employment as a Senior Electronics Design Engineer. The Cambridge Employment Tribunal's remedy judgment limited future financial loss to three years from the remedy hearing and assessed pension loss by reference to employer contributions to a defined-contribution pension scheme.

The claimant appealed the approach to future loss, pension, bonus, holiday entitlement and reconsideration of the injury-to-feelings award. The respondent cross-appealed against a 10% uplift made on reconsideration under section 207A of the Trade Union and Labour Relations Consolidation Act 1992.

The central issues were whether the Tribunal had adopted an impermissible approach to future loss and whether its reconsideration decisions disclosed an error of law.

1. Appeals and cross-appeal dismissed. The Employment Tribunal made permissible findings about the claimant's employment history, performance, likely prospects with the respondent, health and position in the labour market. It then assessed the future on the available evidence. Its award of full past loss and three years of partial future loss did not apply a balance-of-probabilities test.

2. Future-loss assessment is necessarily speculative. The tribunal must estimate the relevant possibilities and chances, including when equivalent employment is likely to be obtained and whether employment with the respondent would in any event have ended for a non-discriminatory reason. Career-long awards are rare. On the findings, the Tribunal was entitled to conclude that the claimant would have moved on in any event and would fully mitigate within three years.

3. The claimant had not proved that equivalent employment would continue to provide materially less favourable pension or bonus benefits. Once the Tribunal was entitled to limit future loss to three years, it could apply that limit to those heads of loss. For a defined-contribution scheme, calculating the employer's contributions over that period adequately reflected the loss.

4. The unaddressed claim for two additional annual holiday days did not require a separate award. The Tribunal was entitled on reconsideration to find that an annual salary did not give the proposed £200-per-day claim intrinsic additional value. The salary differential award already included holiday entitlement.

5. The Tribunal was entitled to confine reconsideration to the written grounds. It made no error in declining to revisit the injury-to-feelings award on a ground not pleaded. Its remedy hearing also pre-dated the later decision and guidance relied upon for a further inflation adjustment.

6. Section 207A was engaged by failures in the disciplinary, grievance and appeal processes. Reconsideration was open in the interests of justice because the earlier aggravated-damages award reflected one manager's conduct, whereas other procedural failures had not been taken into account. A 10% uplift was within the Tribunal's discretion: there was a process, but not a wholesale failure of process, and it was flawed.

• Employment Appeal Tribunal: the claimant's appeals and the respondent's cross-appeal were dismissed.

• Cambridge Employment Tribunal: remedy judgment promulgated on 6 June 2017. It awarded compensation, including three years of future loss, and initially declined an ACAS Code of Practice uplift.

• Cambridge Employment Tribunal: reconsideration decision dated 12 April 2018. It made a 10% uplift under section 207A of the Trade Union and Labour Relations Consolidation Act 1992 and otherwise refused the material reconsideration applications.