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.
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. [Summary not yet checked against the judgment.]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
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? [Summary not yet checked against the judgment.]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
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. [Summary not yet checked against the judgment.]
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. [Summary not yet checked against the judgment.]
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. [Summary not yet checked against the judgment.]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Remedies; future loss; pension loss. The Court of Appeal upheld the tribunal's finding that the claimant would regain her previous level of earnings gradually over twelve years, an estimate of the mid-point of the probabilities with which an appellate court will not interfere [52]. On pension loss the appeal was allowed. The tribunal misdirected itself in choosing the simplified approach: on its own findings the only conclusion open to it in the particular circumstances was the substantial loss approach [80]. Underhill LJ cautioned that the Guidance on compensation for pension loss has no statutory force, its recommendations are not gospel, and the approach taken here should not be assumed correct in every case [81]. Remitted to the same tribunal to assess pension loss on the substantial loss basis [82]. [Summary not yet checked against the judgment.]
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.