By Rajiv Bhatt
Following the Court of Appeal’s decision (Griffin v Plymouth Hospitals NHS Trust  EWCA Civ 1240) the Employment Tribunal has now handed down its remedy judgment. Cloisters’ barrister Chris Milsom represented the Claimant at the remedy hearing. Three points of interest arise from the judgment.
Firstly, the revised calculation of pension loss has resulted in an additional £93,000 being awarded to the Claimant (although this figure seems to be incorrectly calculated and the award may even rise to approximately £123,000).
Secondly, the tribunal’s comments in relation to the “withdrawal factor” are also of interest. The withdrawal factor is a sum calculated to take into account the “likelihood that the claimant would have remained in employed by the respondent until retirement, subject to the usual risks o mortality and disability”. It is in essence as reduction in the various figures used to calculate pension loss. In order to understand the application of the withdrawal factor, it is useful to first outline the “substantial loss approach” when calculating pension loss:
- Loss of future pension rights = A – B – C
- ‘A’ is the value of the prospective final salary pension rights up to the normal retirement age in the former employment.
- ‘B’ is the value of the accrued final salary pension rights to the date of dismissal from the former employment.
- ‘C’ is the value of the prospective final salary pension rights to normal retirement age in the new employment (if any).
The tribunal held that the withdrawal factor should be the same for A and B. The Respondent had argued that the withdrawal factor should be applied to A but not B. However, the tribunal correctly said that this would in effect mean that the Claimant would suffer a double reduction – first because of a reduction to value A and secondly because there was no deduction from value B which would, of course, be subtracted from value A.
Finally, the manner in which the tribunal dealt with an award of interest is also worth noting. The tribunal did not award interest until the date of the remedy hearing. Instead, it calculated the interest until the date of the original calculation, that being 27 January 2011.