Employment Flash - 12th February 2010

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If there is a remission to determine future loss, is the tribunal on remission to consider the position in the light of what is now known or the position as it appeared at the time of the original decision?

NCP Services Ltd v Topliss [2010] UKEAT 0147 09 SM

The EAT took the view that you deal with matters as they are known at the date of the re-hearing not as at the date of the original hearing: the effect of the successful appeal was that it was as if the original decision on future loss had been adjourned until the date for the re-hearing; compensation is on a just and equitable basis and if matters are better known at the time of the re-hearing (as will be likely) then that will be the fairer basis; the reality of the present is preferable to the hypothesis of the past (at the time of the original decision the ET were hypothesising about what the future loss would be); the law should assume that a proper decision will get the calculation right, so that where time has past and the calculation can now be known (or better known) then the law should assume that that was the calculation that a tribunal would have made, or to put it another way: it should not be assumed that the law would produce an unreal and inaccurate answer if one knows what the real and accurate answer is.

The ET had satisfactorily dealt with past loss and other losses arising in this PIDA claim which was automatically unfair for breach of the (unlamented) statutory disciplinary procedures.

The EAT could not find existing authority either way for them to consider and the parties had the matter somewhat sprung on them at the hearing. The EAT as a consequence has allowed 3 weeks to the parties to produce any further submissions supported by authorities that they may wish to rely on.

There are authorities connected with review and future loss of earnings where there has been a change of circumstance since the tribunal decision e.g. Yorskhire Engineering and Welding Co Ltd v Burnham [1974] ICR 77, Bateman v British Leyland (UK) Ltd [1974] IRLR 101.