Nicola Griffiths v Essex County Council

Compensation for unlawful discrimination is assessed on tortious principles. Loss must flow directly and naturally from the discriminatory act, but reasonable foreseeability is not an additional requirement. An act of discrimination pleaded and upheld as a detriment may cause loss of employment and future earnings, even where the claimant also succeeds in an unfair constructive dismissal claim.

Where future employment will only partly mitigate loss, the tribunal must assess the resulting continuing loss of earnings and pension benefits. It cannot avoid that assessment by assuming that the claimant will obtain suitable work without considering the likely remuneration and pension arrangements. Complex pension calculations should be used where necessary to provide proper compensation.

An Employment Tribunal upheld one complaint of indirect disability discrimination and a complaint of unfair constructive dismissal. It later awarded compensation including loss of earnings and pension loss, but made no award for future loss of earnings and assessed pension loss at £20,000.

The respondent cross-appealed against the award of loss of earnings, arguing that the loss could arise only from constructive dismissal and was therefore subject to the statutory cap. The claimant appealed against the assessment of future earnings and pension loss. The central issues were whether the discriminatory detriment could cause loss flowing from the claimant’s resignation, and whether the tribunal had adequately assessed continuing financial loss.

1. Cross-appeal dismissed. Under Equality Act 2010, a discrimination complaint may concern dismissal, including constructive dismissal, or any other detriment. The claimant had established only indirect disability discrimination as a detriment, not discriminatory constructive dismissal. That did not prevent loss of earnings from being compensation flowing from the discriminatory detriment.
2. Compensation had to be assessed on tortious principles. The relevant question was whether the loss flowed directly and naturally from the discriminatory act. Reasonable foreseeability was not an additional requirement. The Employment Tribunal had applied that approach and found that the exclusion from the investigation was an effective cause of the resignation. The delay caused by unsuccessful grievance and appeal processes did not break causation.
3. The Employment Tribunal was entitled to find that the discriminatory detriment and the unfair constructive dismissal caused overlapping and indivisible loss. A claimant may accept more than one repudiatory breach, and a non-discriminatory breach may support an unfair constructive dismissal while a discriminatory detriment separately causes loss of employment.
4. Appeal allowed. The Employment Tribunal erred by awarding no future loss. It assumed that the claimant would obtain a suitable job, but failed to assess the substantially lower salary attached to the Military Welfare Officer post or the remuneration likely from other possible employment. It therefore failed to assess partial mitigation and continuing loss.
5. The tribunal also erred in assessing pension loss without considering the pension provided by future employment or whether continuing pension loss would result. The complex methodology in the Employment Tribunals Principles for Compensating Pension Loss might be required where the simple approach could not provide proper compensation.
6. The matter was remitted to the same Employment Tribunal. Its detailed factual findings had not been successfully challenged, and remission to the same tribunal was proportionate and likely to avoid additional cost.

• Employment Appeal Tribunal: The appeal against the remedy judgment was allowed, the respondent’s cross-appeal was dismissed, and assessment of future loss of earnings and pension loss was remitted to the same tribunal.
• Employment Tribunal: Liability judgment sent on 26 January 2023 upheld one complaint of indirect disability discrimination and unfair constructive dismissal. Remedy judgment sent on 31 July 2024 awarded compensation but no future loss of earnings and £20,000 for pension loss.