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Joel Donovan QC and Chris Milsom Secure Important Court of Appeal Ruling on Pension Loss
Mrs Griffin was a bone densitometrist at Derriford Hospital, Plymouth. In 2007 she was diagnosed with systemic lupus erythematosus (“SLE”). The ET found that the Trust made “wholly inadequate efforts” to assist in a return to work and she was successful in her complaints of constructive unfair dismissal and disability discrimination.
The ET made two crucial findings. Firstly, that with reasonable adjustments she would been able to continue in Trust employment indefinitely, on a part-time basis. Secondly, that she would not realistically be able to work for the Trust again, nor find other employment as a clinical technician, Derriford being the only hospital in her area. The ET nonetheless held that her earnings losses were confined to one year post-dismissal.
As an NHS employee Mrs Griffin had benefitted from a final salary pension scheme. She conceded that she would be able to enter a pension scheme within four years, but not that it would be a final salary scheme. The ET applied the simplified approach to calculating future pension loss.
She appealed the ET’s decision on remedy, and the EAT remitted the case back to the same ET to review the period of loss of earnings and the pension loss. In the meantime, Mrs Griffin had obtained a voluntary back-office role in Shelter. She sought to rely on the fact that she was limited to unpaid administrative work at the remitted hearing. The ET excluded this evidence. The ET did nevertheless increase her award, projecting that she would equal her earnings but for discrimination within a 12-year time frame. But it stuck fast to the simplified approach to pension loss – assuming, in effect, that Mrs Griffin would enter another final salary scheme. Her second EAT appeal failed.
The Court of Appeal dismissed the appeal on the future loss of earnings issues, reasoning that the ET was entitled to exclude the Shelter evidence on the strict terms of remittal, and given the need for finality. However, the Court overruled the ET and EAT as regards pension loss. It was an error of legal principle to apply anything other than the substantial loss approach given that this was a final salary scheme and the simplified approach did not provide adequate compensation for the loss of enhancements. Mrs Griffin’s relative youth was a red herring when all the factors pointed to a career-long loss and the ET had found that she would likely have stayed the course to retirement in any event.
Perhaps most noteworthy are the concluding observations of Underhill LJ (giving the lead judgment). He said that the Pension Guidelines, formulated in 2003, were in urgent need of review so as to ensure that they provided for adequate compensation, and expressed the hope that HM Courts and Tribunals Service and/or the JudicialCollege would undertake this imminently.