Griffiths v Essex County Council: EAT clarifies causation in discrimination remedy awards and sends pension loss back for recalculation

The Employment Appeal Tribunal's decision in Griffiths v Essex County Council [2026] EAT 86 will be of considerable interest to anyone advising on remedy in mixed discrimination and unfair dismissal claims, particularly where the statutory cap on unfair dismissal compensation might otherwise limit recovery.

The underlying facts are familiar territory for employment practitioners: a long-serving social worker became the subject of an investigation into complaints about her practice, was not told the details of those complaints for several months, and was excluded from participating in the investigation itself. An Employment Tribunal found this amounted to indirect disability discrimination, on the basis that excluding the subject of a complaint from an investigation into their own conduct was likely to cause deterioration in the mental health of someone with a pre-existing mental impairment. The same Tribunal also upheld a complaint of unfair constructive dismissal, finding a cumulative breach of contract over many months that the claimant ultimately accepted by resigning.

At remedy, the Tribunal awarded full loss of earnings, uncapped, treating that loss as flowing from the indirect discrimination detriment rather than from the unfair dismissal alone. Essex County Council cross-appealed, arguing the Tribunal had effectively smuggled in a discriminatory constructive dismissal finding that had never been pleaded or argued, and that compensation should have been confined to the statutory cap applicable to unfair dismissal.

His Honour Judge Tayler dismissed the cross-appeal. The judgement is a useful restatement of the Essa v Laing causation test in the discrimination context: loss must flow "directly and naturally" from the discriminatory act, without any superimposed requirement of reasonable foreseeability. Crucially, the EAT held that the presence of a separate unfair constructive dismissal finding does not preclude loss of earnings also being recoverable as a consequence of an earlier discriminatory detriment. Where psychiatric harm is genuinely indivisible, applying BAE Systems v Konczak, the claimant is entitled to recover for the whole of it.

This matters because it offers a route to full compensation in cases where a discrimination claim succeeds only as a detriment, but the effects of that detriment cannot sensibly be separated from a subsequent resignation. Tribunals will need to grapple honestly with whether harm is divisible, but where it is not, the Chagger tort-based measure applies in full, untouched by the unfair dismissal cap.

The claimant fared better on her own appeal. The Tribunal had refused any award for future loss, reasoning that the claimant had a job offer on the table (as a Military Welfare Officer) and would likely find suitable employment soon regardless. The EAT found this reasoning flawed: the Military Welfare Officer role paid considerably less than her previous salary, so even if she took it, there would be an ongoing partial loss that went uncompensated. The Tribunal had also failed to identify what salary any alternative "suitable" employment might attract, and made no reference at all to the Employment Tribunals Principles for Compensating Pension Loss when fixing pension loss at a flat £20,000.

The matter has been remitted to the same Tribunal, applying Sinclair Roche & Temperley v Heard, on the basis that its extensive existing findings of fact make it best placed to revisit future loss and pension loss properly. For those drafting remedy schedules, the decision is a reminder that "soon finding a job" is not, on its own, an answer to future loss; the comparator salary matters, and so does the pension that comes with it.