Employment Appeal Tribunal ruling on future loss and “vicissitudes of life” 

On 17 February 2022, the Employment Appeal Tribunal (Clive Sheldon KC, sitting as a deputy High Court Judge, with two lay members) gave a ruling in respect of an appeal by Jaguar Land Rover as to the calculation of future loss.

At a liability hearing in September 2020, Brian Fox succeeded in his claim against his former employer for having failed to make reasonable adjustments and having discriminated against him indirectly in requiring that he agree to take the role of “stores connector” before they would agree to remove the night shift element: his dismissal was accordingly unfair and discriminatory. At a remedy hearing in February 2021, Jaguar Land Rover contended that Mr Fox would not have been able to continue in that role for the duration of his employment for operational reasons, due to the effect of disgruntlement by those colleagues who would be required to work night shifts, due to the economic effects of Brexit and due to Mr Fox’s health. Jaguar Land Rover argued that the compensation should be reduced by 100% after three months, or that there be a “blended reduction”. This argument was rejected on the basis that there was no evidence to support these propositions. The Tribunal found that Mr Fox would have remained in role until his retirement aged 65. Permission to appeal was given in respect of the issues of the effect of disgruntlement and Mr Fox’s health only.

At the appeal hearing, Jaguar Land Rover contended that the Tribunal must necessarily engage in speculation and conjecture in seeking to make predictions as to future loss, that it could not decline to do so simply on the basis of a lack of evidence, and that it should have made a finding that there was a percentage possibility that Mr Fox’s employment would have ended early by due to the “vicissitudes of life”, taking into account his health and the prospect of his colleagues’ disgruntlement specifically.

Mr Fox, represented by Beth Grossman, argued that, while a Tribunal has to speculate where it makes an assessment as to future loss, that speculation is not unbounded, and has to be based in evidence. There will be circumstances where the evidence the employer seeks to adduce is so unreliable and riddled with uncertainty that no sensible prediction can be made properly. The decision as to speculation is a matter of impression for the tribunal which must direct itself properly, having regard to “material and reliable evidence”. This was the approach provided in the case law of the Court of Appeal and Employment Appeal Tribunal from Ministry of Justice v Cannock through to Eversheds v De Belin. In this case, there was no positive evidence to support Jaguar Land Rover’s contentions and neither proposition relied upon was so obvious as to be self-proving.

In dismissing the appeal, the EAT stated that it preferred the analysis of the law advanced on behalf of Mr Fox and found that there was no evidence on which the Tribunal could have accepted Jaguar Land Rover’s propositions as to the effects of disgruntlement or health, even as a percentage possibility. The reduction contended for the “vicissitudes of life” was not “something so obvious that it should have been made without evidence”.  Not only was it not perverse for the Tribunal to reach the findings which it made, but it was effectively bound do so. 

Beth Grossman was instructed by Doreen Reeves at Slater and Gordon Ltd.