Background
Nicola Griffiths, a qualified social worker employed by Essex County Council since 2004, had a long-standing diagnosis of anxiety and depression — a disability within the meaning of the Equality Act 2010. In 2018, following complaints from a manager, the Council conducted a covert investigation into her professional practice. She was neither told she was under investigation nor permitted to participate in it. The experience caused significant deterioration in her mental health: she became fearful for her job, withdrew professionally, suffered paranoia, and eventually began taking antidepressants. A subsequent grievance process was poorly handled, and the Council never unequivocally cleared her or sanctioned those who had made unfounded complaints against her.
Griffiths resigned in February 2020. An Employment Tribunal upheld one complaint of indirect disability discrimination — the provision, criterion or practice of not permitting the subject of a complaint to participate in an investigation into her practice — and a complaint of constructive unfair dismissal. The Tribunal found a clear causal line between the discriminatory PCP and her eventual resignation, holding it was impossible to divide the effect of the successful discrimination complaint from her decision to leave. The remedy judgment awarded a total of £153,906.54 (including interest and tax gross-up), with uncapped compensation for the discrimination claim covering past loss of earnings, expenses, pension loss, and injury to feelings.
Essex County Council cross-appealed, arguing that uncapped loss-of-earnings compensation was unavailable because the claimant had brought only a detriment complaint (not a discriminatory constructive dismissal complaint), and that the award should have been capped at the unfair dismissal maximum. Griffiths appealed separately on the grounds that the Tribunal erred in awarding nil future loss of earnings and in its assessment of pension loss.
The Court’s Holding
HHJ Tayler dismissed the employer’s cross-appeal. The EAT confirmed that an indirect disability discrimination complaint brought as a “detriment” under section 39(2)(d) of the Equality Act 2010 can, on ordinary tort causation principles, attract compensation for all loss flowing directly and naturally from the discriminatory act — including lost earnings resulting from a subsequent resignation — without the need for the claimant to have framed her claim as a discriminatory constructive dismissal. The Tribunal had correctly identified a continuous, unbroken causal chain from the PCP (exclusion from the investigation) through the progressive destruction of the employment relationship to the resignation, and the chain was not broken by the Council’s own subsequent wrongdoing. The absence of a foreseeability requirement in discrimination compensation was affirmed, applying Essa v Laing Ltd and Chagger v Abbey National plc.
The EAT allowed the claimant’s appeal on remedy. The Tribunal erred in law in awarding no future loss of earnings: where a claimant has sustained ongoing loss and there is no proper evidential basis for a nil award, simply failing to make any future loss assessment amounts to an error of law. The EAT also found the pension loss assessment of £20,000 to be legally flawed. Both issues are to be remitted for fresh consideration.
Key Takeaways
- A discrimination detriment claim can ground uncapped compensation — including lost earnings from a subsequent resignation — without the claimant needing to also bring a discriminatory constructive dismissal claim, provided a direct causal link is established between the discriminatory act and the loss.
- Discrimination compensation is assessed on tort principles: loss must flow “directly and naturally” from the wrong; reasonable foreseeability is not required, but causation, mitigation, and any break in the chain remain live issues.
- Excluding a disabled employee from an investigation into their own practice is a PCP capable of causing substantial disadvantage to those with mental health disabilities, and can trigger liability for the full financial consequences of the employment relationship breaking down.
- Employment Tribunals must properly assess future loss of earnings and pension loss; a nil award for future loss requires adequate justification on the evidence.
Why It Matters
This decision settles an important structural question in discrimination compensation: claimants who suffer a discriminatory detriment during employment need not pursue a parallel discriminatory constructive dismissal claim to recover uncapped financial losses from their eventual departure. So long as causation is established, the full economic consequences of the discrimination — including post-resignation earnings loss — are recoverable under the Equality Act’s tort-based compensation regime. This has significant implications for how claimants plead their cases and how employers assess litigation risk.
The ruling also serves as a practical reminder for public-sector employers managing workplace investigations: failing to involve the subject of an investigation, particularly an employee with a known mental health disability, can constitute indirect disability discrimination for which compensation is uncapped. Adjustments to investigation procedures to allow participation are a proportionality consideration that employers cannot safely ignore.