Thread by @JasonBraier

1/ Shittu v South London & Maudsley NHS: Important finding (obiter) that the loss of chance test remains the test re compensation for unfair/discrim dismissal & the counterfactual chance of a fair dismissal. Perry v Raley doesn't change that.
assets.publishing.service.gov.uk/media/6202b0d0…
#ukemplaw

2/ S was a complaints manager for SL&M NHS Trust. He'd been diagnosed with bowel cancer in 2009 & resigned in Aug 2016. He brought claims for constructive unfair dismissal, a couple of bases of automatic unfair dismissal & loads of disability discrim & victimisation claims.

3/ Ultimately of the very many claims brought, he succeeded on 2 claims re 1 act: he'd complained about not being paid when off work for a post-cancer check-up & complained also about a failure to investigate that complaint. It was 1 of the reasons he resigned.

4/ Thus S succeeded in claiming ordinary unfair dismissal & in a s.15 claim related to the detriment of failure to investigate & consequential dismissal.

On remedy, though S was awarded a basic award & injury to feelings, no compensatory award was made nor EqA loss of earnings.

5/ The ET's reason for not making that award was because the pay deduction formed a very small part of a series of ill-founded allegations of breach & that had the 1 well-founded allegation not occurred, S would still have resigned.

6/ The appeal focuses on the interesting question as to whether a balance of probabilities approach or a loss of chance approach is correct when assessing loss vis-a-vis the chance employment would have ended but for the breach of contract/discriminatory act. S said the latter.

7/ The advantage to a claimant of the loss of chance approach is of course that on a balance of probabilities approach the employer just has to overcome a 50% hurdle as to likelihood of termination to end compensation, whereas loss of chance requires 100% for that result.

8/ In arguing the balance of probabilities corner, SL&M accepted loss of a chance was appropriate for whether an employer (a 3rd party) would have dismissed a claimant, but asserted balance of probabilities was a correct test when considering what a claimant would have done.

9/ SL&M relied on the Sup Ct's judgment in the pro neg case of Perry v Raleys for that proposition.

10/ The EAT disagreed. The Sup Ct decision in a pro neg case didn't displace 50 years of guidance in unfair dismissal cases that compensation be calculated on a % chance of the unfairly dismissed employee being had a fair procedure been followed, including in the HL in Polkey.

11/ This aspect of the EAT's decision is strictly obiter, as it found the ET had, appropriately, adopted the loss of chance approach in finding S would definitely have resigned on the same day absent the breach/discriminatory act.
However, Stacey J recognises it's importance.

12/ Stacey J considered the Sup Ct's distinction in Perry between a claimant having to prove on a balance of probabilities what he would've done in a counterfactual world & the % chance as to what a 3rd party would've done a useful divide in pro neg but not transferrable.

13/ Stacey J considered that adopting that approach to compensation for dismissals would hideously overcomplicate what is supposed to be a common sense and practical speculative exercise.