Compensation and Future Loss
Rad Kohanzad acted for Nicola Griffiths in Nicola Griffiths v Essex County Council [2026] EAT 86, an appeal about compensation following findings of indirect disability discrimination and unfair constructive dismissal. The Employment Appeal Tribunal (EAT) held that the Employment Tribunal had erred by awarding no future loss of earnings and by failing properly to assess potential ongoing pension loss. The appeal was allowed and those issues were remitted to the same Employment Tribunal. The EAT also dismissed the Council’s cross-appeal, confirming that earnings lost after resignation can, on the facts of a case, flow from an earlier act of discrimination.
Background and Employment Tribunal decisions
Nicola Griffiths was a qualified social worker who had worked for Essex County Council since 2004. After concerns were raised about her work in 2018, the Council investigated her practice without telling her the full details of the complaint or allowing her to participate in the investigation. The process caused significant anxiety and affected her confidence in her working relationships.
The Employment Tribunal found that the Council had applied a provision, criterion or practice (PCP) of not permitting the subject of a complaint to participate in the investigation. That PCP put disabled people with mental health impairments at a particular disadvantage, including because the process was likely to worsen their mental health. It was not a proportionate means of achieving a legitimate aim, and Ms Griffiths succeeded in a claim of indirect disability discrimination.
The Tribunal also upheld her claim of unfair constructive dismissal. It found that a cumulative breach of the implied term of trust and confidence had led to her resignation in February 2020.
At the remedy hearing, the Tribunal awarded compensation including past loss of earnings, expenses, injury to feelings and £20,000 for pension loss. It awarded no future loss of earnings, reasoning that Ms Griffiths was likely to find suitable employment soon. She appealed the assessment of future earnings and pension loss. The Council cross-appealed the decision to award earnings loss flowing from the indirect discrimination, arguing in substance that the Tribunal had wrongly attributed losses associated with constructive dismissal to a separate discrimination complaint.
Can an act of discrimination cause loss of earnings after resignation?
The Council’s cross-appeal raised an important distinction: a claimant may succeed in a claim of unfair constructive dismissal without having established a separate claim of discriminatory dismissal. But that does not automatically prevent compensation for an earlier discriminatory act from including earnings lost after the employee resigns.
Under section 124 of the Equality Act 2010, compensation for unlawful discrimination is assessed on tortious principles. The question is what loss flowed from the unlawful act. As explained in Chagger v Abbey National plc and Essa v Laing Ltd, the loss must flow directly and naturally from the discrimination; it need not have been reasonably foreseeable.
The EAT held that the Tribunal had been entitled to find that the indirect discrimination caused losses extending beyond the period when the discriminatory PCP was applied. The Tribunal had found that the investigation had seriously damaged Ms Griffiths’ mental health and her trust in the Council. Its effects continued, and her confidence in the employer was never restored. The Tribunal concluded that the discrimination was an effective cause of her resignation, even though she resigned around two years after the original events.
The EAT rejected the Council’s cross-appeal. It did not treat the later constructive dismissal as automatically breaking the chain of causation. Instead, the Tribunal had to assess whether the financial loss claimed flowed from the discriminatory act on the facts it had found.
This is a case-specific conclusion, not a rule that every act of discrimination during employment entitles an employee to recover all subsequent earnings loss. The causal link between the unlawful act and the loss must still be established.
Future loss of earnings: a realistic assessment, not an assumption
The EAT allowed Ms Griffiths’ appeal against the refusal to award future loss of earnings.
The Employment Tribunal had considered that Ms Griffiths was likely to find a suitable job soon. She had received an offer for an Army Welfare Officer role, although it involved substantial travel and paid considerably less than her former role. The Tribunal also considered that she might find another permanent job or become self-employed.
The problem was that the Tribunal had not assessed what she was likely to earn in those alternatives. The prospect of finding work does not, by itself, mean that future earnings loss will end. If a claimant is likely to obtain work at a lower salary, there may be continuing loss until equivalent earnings are restored—or for another appropriate period.
The EAT explained that compensation requires a robust and realistic assessment of likely future events. Some uncertainty is unavoidable, and a Tribunal may need to estimate the date on which a claimant is likely to obtain equivalent employment or assess the percentage chance of doing so. In other cases, a claimant may mitigate only part of the loss and continue to suffer a shortfall in earnings.
The Tribunal had not properly assessed the potential financial consequences of the jobs it considered Ms Griffiths might obtain. It therefore erred in deciding that no future loss should be awarded.
Pension loss: assess the likely continuing shortfall
The EAT also held that the Tribunal’s assessment of pension loss was legally flawed.
The Tribunal had awarded £20,000 for pension contributions lost in the period following dismissal, but had not adequately assessed whether Ms Griffiths would continue to suffer pension loss after obtaining alternative work. It had not considered what pension provision the potential new roles would offer, nor had it referred to the Employment Tribunals Principles for Compensating Pension Loss.
The EAT recognised that pension-loss calculations can be complex, but complexity is not a reason to avoid a proper assessment where the evidence requires it. A simple calculation may be appropriate in some cases; in others, the Tribunal may need to use a more detailed method to estimate the difference between the pension the claimant would have received and the pension likely to be earned in alternative employment.
The decision does not prescribe a particular calculation for every case. It requires the Tribunal to address the evidence and assess the likely ongoing loss rather than assume that alternative employment will eliminate it.
What the EAT decided
The EAT:
Allowed Ms Griffiths’ appeal against the assessment of future loss of earnings and pension loss.
Dismissed the Council’s cross-appeal concerning whether earnings loss could flow from the earlier act of indirect disability discrimination.
Remitted the future-loss and pension-loss issues to the same Employment Tribunal for reconsideration.
The EAT did not determine the amount of any additional compensation. The Tribunal must now reassess the relevant losses in accordance with the EAT’s reasoning. The original findings of indirect disability discrimination and unfair constructive dismissal were not overturned.
Relevance to Employment Tribunal appeals
This case is relevant to appeals about the assessment of compensation after liability has already been established. A remedy decision may contain an error of law if the Tribunal fails to assess a material head of loss, gives inadequate reasons, or assumes that a claimant will find equivalent work without evaluating the likely earnings from the alternatives it identifies.
In a future-loss claim, the key question is not simply whether the claimant is likely to work again. It is whether the Tribunal has made a properly reasoned assessment of the likely timing, salary and benefits of alternative employment, and of any continuing shortfall. Pension loss may require a separate analysis, particularly where the claimant’s previous employment offered a defined benefit pension or more valuable contributions.
The cross-appeal also illustrates that losses following resignation can sometimes be attributed to an earlier discriminatory act, even where the successful dismissal claim is unfair rather than discriminatory. That depends on the evidence and the Tribunal’s findings about causation.
An appeal is not an opportunity simply to seek a higher award because the amount feels inadequate. The question is whether the Tribunal made a material error in applying the law, assessing the evidence or explaining its conclusions.
If you have received a remedy judgment that may have overlooked future earnings or pension loss, I can review the Tribunal’s reasoning and advise on whether there may be grounds for appeal before you decide whether to incur the further costs of pursuing one. If you decide to proceed, I can also advise on and represent you in the EAT.
Find out more about my Employment Tribunal appeal review and advice service
Case details
Case: Nicola Griffiths v Essex County Council
Neutral citation: [2026] EAT 86
Judgment date: 12 June 2026
Judge: His Honour Judge James Tayler
Case number: EA-2024-001169-JOJ
Counsel for the Appellant: Rad Kohanzad, instructed through direct access
Counsel for the Respondent: Tom Gillie and Katy Sheridan, instructed by Essex County Council Legal Services
Outcome: Claimant’s appeal allowed on future earnings and pension loss; Council’s cross-appeal dismissed; relevant remedy issues remitted to the same Tribunal.
