The link between the act or characteristic and the outcome, distinguishing the reason for liability from the counterfactual at remedy. Nagarajan v London Regional Transport; Software 2000 Ltd v Andrews.
The 'reason' for dismissal is the set of facts known to the employer, or beliefs held by him, which cause him to dismiss the employee. An incorrect label (e.g. redundancy instead of capability) does not invalidate the dismissal if the facts were known.
Race Discrimination; Victimisation; Causation. The House of Lords (as it then was) held that the 'reason why' test focuses on the conscious or subconscious influence of the protected characteristic on the decision-maker. Motive, whether benign or malicious, is irrelevant if the prohibited ground had a 'significant influence' on the outcome.
Victimisation; the 'reason why' test. Lord Nicholls clarified that the inquiry into the 'reason for' treatment is a subjective test of the decision-maker's mental processes. It is 'not a but-for' test. The question is: why did the alleged discriminator act as he did?
Unfair Dismissal; Reasons; Pretext. Elias P held that identifying a potentially fair reason (e.g. misconduct) is only the first step. The Tribunal must determine if that reason was the *real* and *operative* cause. If an employer dismisses where they otherwise would not have, then the misconduct is a mere pretext and the dismissal is unfair.
Remedies; Polkey; the EAT consolidated the principles for assessing a 'loss of chance' reduction. Elias P set out four scenarios for assessing whether a fair process would have yielded the same result, emphasizing that tribunals should not shy away from the 'reconstruction of a hypothetical future' because it is speculative.
Remedies; Future Loss; established the 'tipping-point' approach. Compensation for future loss should normally be assessed up to the point where the employee is likely to find equivalent work (more than 50% probability). It also clarifies that statutory uplifts should only apply to losses directly linked to the unfair dismissal.
Remedies; Future Loss; Pension Loss. The Court of Appeal upheld a 12-year assessment of future loss, noting it was an estimate of a mid-point for probabilities. It also ruled that the 'substantial loss approach' was required for Assessing pension loss in complex, long-term careers.
Causation; s.18 EqA (Maternity). HHJ Shanks emphasized the 'reason why' test in maternity discrimination. Even if the treatment (e.g. failing to send a redundancy email to a private address) was unfavourable and would not have happened 'but for' the maternity leave, the claim fails if maternity was not the reason for the treatment.