In Qu v Landis & Gyr Ltd, (2019) UKEAT/0016/19/0803, a case about remedy for disability discrimination, and the difficult exercise of assessing what is likely to have happened absent a discriminatory dismissal, Simler J said as to the approach to the question of assessing future loss (emphasis added):-
“28. The authorities show that it is a rare case where it is appropriate for a Tribunal to assess compensation over a Claimant’s career lifetime, as the Claimant invited the Employment Tribunal to do. The usual approach is to assess loss up to a point where a Tribunal is satisfied, having regard to all the uncertainties and vagaries of life, that the individual is likely to get an equivalent job. The speculative nature of the exercise means that it is possible that the individual will in fact get an equivalent job sooner or might be unlucky and take longer to do so. Thus, the Tribunal’s prediction will not necessarily be right, but those outcomes are inevitably factored into its assessment. Since the calculation of compensation for future loss is both speculative and predictive, there is no certainty about what will happen, but rather a range of possibilities and chances of different things occurring. The assessment is not a question of fact but a question of carrying out an assessment on the basis of the Tribunal’s best estimate about the future.
- In Abbey National v Chagger by the time compensation came to be assessed, Mr Chagger had been out of a job for many years by the time of the remedy assessment. The evidence was that but for the unlawful discrimination against him, he would have remained at Abbey National. The Employment Tribunal found every effort had been made by him to obtain employment in his chosen field but the manner of his dismissal had led to stigma in the eyes of other employers. The Tribunal found that he took reasonable steps to mitigate his loss by going into a different field, teaching, and the evidence as a whole entitled the Tribunal to conclude that he had suffered permanent career loss for which he was entitled to be compensated. ….
- The result on the facts of that case was that the proper assessment of loss was to be determined by asking when Mr Chagger might expect to obtain another job at an equivalent salary to his Abbey National salary and to fix his loss by reference to that period. The best evidence available to answer that question was provided by the efforts he had made to obtain alternative employment. The Court of Appeal also made clear, following well established principles, that when looking at future loss the assessment must be made by focusing on the degree of chance and not on a balance of probabilities approach; in other words, it would be wrong to conclude that something was more likely than not to have happened and then to deem it to have happened rather than considering the chance of it happening and applying a percentage factor to reflect that chance.
- Elias LJ also recognised that in many cases the appropriate period for future loss would be fixed by reference to different considerations. …”