• Robert Spicer

RECENT EMPLOYMENT-RELATED CASES

DAMAGES

Lost years of earnings

Case Head v Culver Heating Co Ltd [2021] EWCA Civ 34

Facts H was the managing director of EMSL, his own heating and ventilation company. He was negligently exposed to asbestos between 1974 and 1979 when he was an apprentice heating engineer at CH. He was diagnosed with mesothelioma in March 2018 and he died from the disease in 2019. Before he died he claimed compensation from CH. The issue in the case was the amount of compensation which could be claimed for the lost years – the years which he would have worked if he had not been terminally ill. He had intended to work until he was 75.

H estimated the loss to be more than £4 million. CH estimated it to be nil on the basis that EMSL would continue to make a profit after H’s death and his estate would continue to receive dividends from the company. Also, his personal living expenses exceeded his salary income and there was no loss. At first instance the High Court accepted CH’s estimate because there was no loss: the income generated by the business would continue after his death. H’s estate appealed to the Court of Appeal.

Decision 1. The appeal was allowed and the matter remitted to the High Court to assess the amount of compensation.

2. When investigating a lost years claim, courts must assess the value of earnings or earning capacity which a claimant has personally lost. H had clearly missed out on future earnings and it was irrelevant that his company was likely to continue to be profitable.

DISABILITY DISCRIMINATION

Something arising from disability

Case Smith v Intelling Ltd UKEAT/0307/19/JOJ

Facts S suffered from anxiety and depression and was a disabled person for the purposes of the Equality Act. He was dismissed by I for reasons which were stated to be “performance, attendance, unauthorised absence, behaviours, probation, work volume”. S complained of disability discrimination. The ET dismissed the complaint on the basis that the real reason for the dismissal was that I needed fewer employees and was not something arising from his disability. S appealed to the EAT, arguing that the ET had filed to refer to section 136 of the Equality Act 2010 and its decision had been perverse because it was not supported by the evidence.

Decision 1. The appeal was dismissed.

2. It was unfortunate that the ET had not referred to section 136. This states, in summary, that the burden of proof shifts to the employer once a worker has established a prima facie case.

3. This did not prevent the ET from arriving at a clear conclusion.

EMPLOYMENT TRIBUNALS

Interim relief

Restriction of publicity

Case Queensgate Investments LLP v Millet UKEAT/0256/20/RN

Facts M was dismissed by Q for redundancy. He brought a number of claims in the ET, based on allegations of sexist, racist and homophobic language used in the workplace. He also alleged that Q’s CEO had breached fiduciary duties and was guilty of serious misconduct. He applied for interim relief. The ET found that hearings to decide interim relief applications must be held in public unless an order restricting publicity was made under rule 50 of the Employment Tribunal Rules. The burden was on Q who sought a derogation from the principle of open justice. It refused to make a Rule 50 order. Q appealed to the EAT.

Decision 1. The appeal was dismissed.

2. Q had not put forward evidence which went beyond commercial embarrassment, although it might have potentially very serious financial consequences.

3. The evidence did not support the making of a Rule 50 order.

EMPLOYMENT TRIBUNALS

Unless order

Case Klukowska v Bridge of Weir Leather Company Ltd UKEATS/0038/18/SS

Facts K brought a number of discrimination claims against B. K was a litigant in person. The ET issues an unless order. This ordered K to provide details of alleged statements pr actions related to her claims. K provided a document. The ET ruled that the document did not comply with the unless order. It was confused and confusing and aggregated her protected characteristics rather than separating them out. The claims were dismissed. K appealed to the EAT.

Decision 1. The appeal was allowed.

2. The document had been in material compliance with the unless order.

3. The ET had not engaged directly with the terms of the document and had not explained why it was defective.

4. The claims could proceed.

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