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 question is why the alleged discriminator acted as he did, and that includes subconscious influence: it was enough that the interviewers were consciously or subconsciously influenced by the claimant's earlier tribunal proceedings. Motive, benign or malicious, is irrelevant. Lord Nicholls: 'If racial grounds or protected acts had a significant influence on the outcome, discrimination is made out.'
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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. The phrases 'on racial grounds' and 'by reason that' do not call for a causation exercise such as a 'but for' approach: the question is why the alleged discriminator acted as he did, and what, consciously or unconsciously, was his reason. Unlike causation, that is a subjective test and a question of fact (Lord Nicholls at [29]). Employers acting honestly and reasonably may take steps to preserve their position in pending discrimination proceedings without laying themselves open to a charge of victimisation [31]: refusing a reference while the claimant's own claim was pending was not victimisation, and the Chief Constable's appeal was allowed.
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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.
Remedies; Polkey reductions. Assessing compensation usually requires the tribunal to predict how long the employee would have been employed but for the dismissal. The evidence may not show on the balance of probabilities that the employee would have been fairly dismissed anyway, yet show a realistic chance of it, which must then be reflected in the compensation. Elias P collected the principles: the tribunal must have regard to any material and reliable evidence even if there are limits to how confidently it can predict what would have happened, and 'The mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence.' The tribunal had erred in not addressing whether there was reliable evidence justifying a reduction.
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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; 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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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.
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.