Discrimination - Compensation

The EAT has held in the conjoined appeals of Telindus Limited v Brading & Sheffield Forgemasters International Limited v Fox that the fact that a claimant received incapacity benefits for a period did not preclude him from recovering compensation for loss of earnings in that same period. This is of course subject to the rules relating to double recovery.

These cases concerned Disability Discrimination and both claimants were dismissed; both dismissals were held to be unfair and furthermore discriminatory. The tribunal awarded damages for loss of earnings in the period which the claimants had claimed incapacity benefits.

The respondents contended that the receipt of incapacity benefit should have prevented the tribunal from awarding damages in this period because the claimants were incapable of work and further, that unless the incapability related to the respondents wrongdoing, the claimants should not be awarded damages for these losses.

Silber J (Presiding) held that the statutory definition of incapable of work was a 'deeming provision' which applied only for the purposes of the benefits system and went on further to observe that many persons who satisfy this test of being incapable of work still might be able to work. He went on to further rule that just because a person is incapable of working for the purposes of the benefits system, it does not follow that they must be regarded as unable to earn during the period of incapacity.

This is a very poignant judgement in my opinion and one that Claimant and Respondent lawyers need to be aware of - this is likely to push the cost of compensation for loss of earnings higher than originally anticipated and they should advise their clients accordingly.

For advice on any of the issues you read about in this blog please contact my firm on 0870 756 2929 or email me personally on gda@hrlegalpartners.com