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.]
Cited by
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 checked against a practitioner text, not 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; uplift. Compensation for future loss is normally assessed to the date by which the tribunal finds the employee likely to obtain an equivalent job: the best estimate already factors in the chance of his finding one sooner or later [52]. Only exceptionally, where there is no real prospect of his ever obtaining equivalent work, is loss assessed over the whole career [50], [53]. A tribunal that found a 70% chance of an equivalent job by a given date was wrong to award anything after it [54]. On the statutory uplift under s.31 of the Employment Act 2002, the size of the award is relevant [16]; the maximum of 50% should be very rare and kept for the most egregious cases [26], [35]; and the uplift applies only to the loss referable to the dismissal itself [45]. A short supplementary judgment, [2011] EWCA Civ 770, fixed the uplift.
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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].
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.