Griffin v Plymouth Hospital NHS Trust UKEAT/0554/12/LA

Subjects: Remedies – Ogden Tables – Pension Loss – Future Loss

Facts

C was disabled by reason of Lupus. She worked for R in a Band 6 role in the NHS. She was 24 at the time she started working for R and 34 at the date of her resignation. C first presented a claim of disability discrimination and unfair dismissal to the tribunal and succeeded. There was no appeal against the liability judgment. She was awarded £105,643.00 in damages and appealed against this as she was dissatisfied. The case initially came before Supperstone J and she succeeded on a point relating to continuing loss of earnings and pension loss. The tribunal had not given proper consideration to in relation to continuing loss after obtaining suitable alternative employment. The matter was remitted and the employment tribunal awarded her £166,595.00 (on correction). C remained dissatisfied and appealed. The first issue was whether she could adduce new evidence as to the work she had carried out as a volunteer at Shelter between the first and second remedy hearings. The Employment Tribunal made a finding based on evidence of her volunteer work that she could cope with a stressful occupation. Juxtaposed next to this was a finding based on C’s medical expert that C suffered from stress. The Employment Tribunal referred to only one report and this was an error of law. The medical evidence in context with the findings of the Employment Tribunal indicated very significant difficulties in C’s condition and limitations with her ability to work anywhere else. The Tribunal had made a decision to award her forward losses based on 12 years.

Held

The EAT found that there was no duty to rehearse all of the medical evidence as there are unchallenged findings as to her condition. Secondly, as for the forward losses, the tribunal had set out a 12 year plan based on the evidence as to what chances C would have in the labour market of obtaining work at various rates before she moved up. A tribunal must take care not to base its opinion in disability cases with how a person presents at a hearing as there may be ups and downs in their medical condition (but by implication from this decision, can if it is not the sole basis upon which they make their findings).

The EAT stated that there is no obligation to apply the Ogden Tables. The authorities suggest that there is a prima facie case for using the Ogden Tables where there is a career loss but otherwise the ET can deal with it. It is for the tribunal to determine how to work out the pension loss. There is unlikely to be an error of law where a tribunal has given thought to alternative methods of calculating forward losses and has shown its reasoning. The tribunal was entitled to take a structured approach to each of the periods (para 22).

The EAT deemed there to have been no error of law. The appeal was dismissed.

Comment

The significance of this EAT decision is that it stresses that there is no single approved way of calculating future losses and the Ogden Tables are not binding on a tribunal providing that they have justified their calculation method. As for the remainder of C’s appeal, the EAT saw this appeal as effectively an attempt to get a perversity argument in via the back door. The forward losses over a 12 year period would inevitably involve some speculation based on what the Tribunal knew of the claimant. These are questions of fact and not for an appellate court.