Darron Foat v Department of Work and Pensions

Compensation for discrimination must restore the claimant’s net position but for the unlawful conduct. A state benefit received solely because of injury caused by that conduct may be deducted from compensation where there is a sufficient correlation with the loss. There is no general rule that a care or mobility benefit may be set off only against a matching head of care or mobility loss.

A claimant must formulate and prove each claimed loss. An unclaimed care loss cannot be assumed so as to prevent deduction of a benefit. Future-loss contingencies are for the tribunal’s evaluative assessment, provided its reasons disclose a rational broad-brush assessment. Where future compensation is not taxable, future earnings loss must ordinarily use a net, rather than gross, earnings multiplicand.

The claimant succeeded before the London South Employment Tribunal in claims of disability-related harassment, failure to make reasonable adjustments, constructive unfair dismissal and holiday pay. At a separate remedy hearing, the Tribunal awarded compensation of £373,936.69, including an ACAS uplift, personal-injury damages, financial losses and future loss.

The claimant appealed the Tribunal’s 2% ACAS uplift, its deduction of Personal Independence Payment (PIP), its 50% future-loss contingency discount, and its failure to award an annual bonus. The respondent cross-appealed the use of a gross salary multiplicand for future loss of earnings. The central issues were the proper assessment of compensatory loss and whether the bonus claim was properly before the Tribunal.

1. Appeal dismissed; cross-appeal allowed. The Tribunal made no error of law in fixing a 2% ACAS uplift. It had directed itself consistently with Slade v Biggs, considered the seriousness of the Code breaches, and was entitled at the final stage to assess whether the absolute sum was proportionate, just and equitable. The punitive aspect of an uplift did not prevent that assessment.

2. The PIP deduction was lawful. Under the compensatory principle, the question was the claimant’s net position but for the unlawful conduct. PIP was received because the respondent’s unlawful conduct caused the claimant’s disabling injury. The authorities did not establish a rule that a benefit can be deducted only from an identical head of loss. There was sufficient correlation between the benefit and the compensation claim.

3. The Tribunal was not required to offset PIP against unclaimed everyday care. A claimant must claim and prove a compensable loss, enabling the respondent to challenge it on the evidence. The Tribunal had considered the pleaded claims for a hoist, prescriptions and vehicle costs; it could not assume further care losses merely because PIP was paid.

4. The 50% discount for future non-mortality contingencies was open to the Tribunal. It had identified the claimant’s 30% pre-existing-health risk, considered the Ogden Tables and other contingencies, and gave adequate reasons for its tailored broad-brush assessment.

5. The bonus claim was not properly before the Tribunal. It was omitted from the claim form and schedules of loss, and the claimant’s witness statement expressly said that bonus had not been claimed. Flexibility in case management did not oblige the Tribunal to decide an unarticulated late claim.

6. The cross-appeal succeeded. Having found that future-loss compensation was exempt from tax under Income Tax (Earnings and Pensions) Act 2003, the Tribunal could not rationally use gross future earnings. This was an oversight, not an exercise of discretion. The future-loss-of-earnings award was set aside and substituted with £108,833; total compensation was varied to £334,933.73.

• Employment Appeal Tribunal: Appeal from the London South Employment Tribunal’s remedy decision sent to the parties on 18 July 2024. The EAT dismissed the claimant’s four appeal grounds, allowed the respondent’s cross-appeal, and substituted £108,833 for the future-loss-of-earnings award.
• Employment Tribunal: The Tribunal had upheld complaints of disability-related harassment, failure to make reasonable adjustments, constructive unfair dismissal and holiday pay, and assessed compensation at £373,936.69.