H Shittu v South London & Maudsley NHS Foundation Trust

Compensation for loss of earnings after unfair or discriminatory dismissal is ordinarily assessed as a loss of a chance. A tribunal may make no award, or confine loss to a fixed period, only where it is 100% satisfied that employment would have ended at the relevant time without the unlawful dismissal.

The distinction in professional-negligence claims between what the claimant would have done and what third parties would have done does not impose a balance-of-probabilities approach in constructive dismissal cases. The statutory exercise remains a practical assessment of loss, using the tribunal’s common sense, experience and sense of justice.

The claimant succeeded before the Employment Tribunal in claims of constructive unfair dismissal and disability discrimination. The findings arose from the employer’s failure to deal with a complaint concerning the deduction of one day’s pay for a cancer-related hospital appointment.

At the remedy hearing, the Tribunal awarded a basic award and injury-to-feelings compensation but no loss of earnings. It found that, without the unlawful conduct, the claimant would nevertheless have resigned at the same time because of other, unrelated dissatisfaction and the ending of his contractual sick pay.

The claimant appealed, contending that the Tribunal had wrongly decided the counterfactual on the balance of probabilities and had inadequately explained a 100% reduction. The central issue was whether the loss-of-a-chance approach remained applicable to constructive unfair and discriminatory dismissal after Perry v Raleys Solicitors.

1. Appeal dismissed. Read fairly, the Tribunal had assessed loss on a loss-of-a-chance basis. Its findings, including at paragraphs 86 and 121 of the remedy reasons, meant that it was 100% satisfied that the claimant would have resigned on the same date even without the unlawful pay deduction and the failure to address his complaint.

2. A constructive dismissal is established where the employee resigns at least partly in response to a repudiatory breach. The subsequent compensation exercise is different. The Tribunal must identify loss attributable to the unlawful conduct and separate it from loss flowing from other reasons for resignation. The liability finding therefore did not prevent a conclusion that the claimant would in any event have left when he did.

3. In unfair dismissal and discrimination cases, counterfactual loss is assessed by evaluating chances. A tribunal may award a percentage of loss where the chance of earlier termination is less than certain. It may instead limit loss to a period, including nil loss, only where it is 100% confident that employment would have ended at that point. An all-or-nothing result may therefore follow from a loss-of-a-chance analysis.

4. Perry v Raleys Solicitors concerned causation in professional negligence. Its distinction between the claimant’s own hypothetical conduct and the acts of others does not transfer to the ending of an employment relationship. Applying it would create an unsupported and over-complex set of subsidiary rules for constructive dismissal claims. The open-textured statutory assessment remains the same for actual and constructive dismissal.

5. The Tribunal had examined the evidence and the claimant’s many independent sources of dissatisfaction with conspicuous care. Its reasons adequately explained why there was no compensable loss of earnings.

• Employment Appeal Tribunal: Appeal dismissed: [2022] EAT 18.
• Employment Tribunal: The claimant succeeded on constructive unfair dismissal and limited disability-discrimination findings. At remedy, the Tribunal awarded a basic award and injury-to-feelings compensation, but no loss of earnings.