‘… In the normal case, if a tribunal assesses that the employee is likely to get an equivalent job by a specific date, that will encompass the possibility that he might be lucky and secure the job earlier, in which case he will receive more in compensation than his actual loss, or he might be unlucky and find the job later than predicted, in which case he will receive less than his actual loss. The tribunal’s best estimate ought in principle to provide the appropriate compensation. The various outcomes are factored into the conclusion. In practice the speculative nature of the exercise means that the tribunal’s prediction will rarely be accurate. But it is the best solution which the law, seeking finality at the point where the court awards compensation, can provide.’
“… She was an established and dedicated teacher. She had a good record of teaching, leadership experience, she wanted to progress her career, but for the statutory torts her career would not have been stalled in the way it was. It was difficult to assess what the financial compensation for that should be, but doing the best we could with the information we had we considered that an appropriate amount, was£15,000 (which equates to the difference in salary for a year between the claimant’s salary and the headteacher’s salary).” 56. Any court approaching this on appeal would seek to understand what was being said here. To my mind it is clear. The Tribunal were in effect saying that the Claimant would, as a result of what had happened, no longer be promoted to the post she otherwise had a chance of reaching as early as she would have done. In compensation for that delay it took a figure which broadly represented a year at a Head Teacher’s salary, it being her case that that is the position she ultimately would have achieved. If indeed her career was delayed by a year in reaching promotion, that would not be inappropriate. 57. That was the position as at 2008. The question then is whether, in the Review and Reconsideration Decisions, the Tribunal began with the 2004 incidents when assessing compensation, or began to assess the additional loss as from 2008. It seems to me unarguable that the latter is the case. That being so, it was already accepting that there had been the setback to the career of which the Claimant was complaining, which it accepted had occurred, and therefore there is no overlap between the damages. I understood, I hope accurately, that in submissions Mr Healy felt that, if the starting point was as I have described it, then the conclusions would follow. 58. At 2.10 the Respondent returns again to the question of the decision as to Deputy Head and Head Teachers. I merely repeat what I have already said in respect of those matters. 59. In ground 2.11 it is suggested that the Tribunal erred in its approach to residual earning capacity. It did not make the broad, sensible and fair assessment of the Claimant’s likely future earnings it should have done because it made no allowance for the possibility of future promotion in the post which the Claimant would have. As to this, it seems to me that this would be regarded by any court on appeal as an over-focus upon individual items and aspects of the Judgment which would necessarily be broad-brush, as the Respondents’ own statement of principle recognises. The Tribunal expressly recorded it as a speculative exercise (paragraph 67), in respect of which it nonetheless did its duty to assess the loss as best it could. It noted that it could have assessed loss using a varying percentage basis. This makes it clear that the Tribunal was actually doing its best in reaching a broad-brush conclusion to the question of what residual future earnings might be. It is not appropriate in respect of such reasoning to criticise the Tribunal for a failure to take separately into account that which almost automatically was part and parcel of the assessment: that is, the prospects of increased earnings over time beyond the natural effects of inflation. 60. As to ground 2.12 (Pension Loss) it is argued that the 2013 Guidelines should have been adopted. They anticipate that a Claimant’s salary, as at the date of dismissal, should be regarded as the starting point for any assessment of pension loss in the future. The Guidelines say that they do not make specific allowance for inflation, future career progression and so on since those are taken into account in the discount factors to be applied. However, all must depend upon the particular facts. I put to Mr Healy in argument what the position would be if it were certain that within three months of a dismissal or a wrong a Claimant would otherwise have been promoted as a certainty: would the pension be calculated upon the basis of the unpromoted salary or the promoted one? He indicated that, consistent with his argument, the former was the only conclusion he could reach. It seems to me that if a court knows what the position will be it would be artificial not to take that into account. If, for example, it is thought to be the case that the Claimant would be a Head Teacher as at the date of her retirement, and would have been so for the requisite time under the pension scheme (a year or three, whichever it may be), then her pension would under a final salary pension scheme be based, as the name suggests, upon those last year’s earnings. Those promoted earnings are necessarily greater, when considering the appropriate figures at the time of calculation, than the unpromoted wage she would have been receiving at that date. I do not see, therefore, that this calculation is in error. 61. The only matter I would mention, however, is that if the Respondent succeeds in its appeal in respect of the 100% figure for the chance of becoming a Head Teacher and some other figure, for instance, is substituted, whether it be 75%, 80%, 90% or as may be, that would have a knock-on effect upon the entirety of the pension calculation because the starting point would be less certain by the appropriate percentage, and accordingly the pension figure would then fall for review too. 62. The process of pension calculation begins, therefore, with what the Guidelines refer to as the current salary, as multiplied by the appropriate factor derived form tables, from which is to be deducted the value of accrued pension rights at the date of dismissal. This gives rise, it seems to me, to the second potential point of appeal. The Tribunal concluded that, in order to calculate the earnings from the pension scheme which had applied to her whilst a teacher, a pension to which she remained entitled, it should use a multiplier of 9.45. Mr Healy argues that it should have used one of 12.12 because the Claimant’s “normal retirement age” was 60, not 65. The Tribunal approached the matter as if the Claimant’s evidence that she would have worked on to 65, as she was entitled to do, would have affected not just the pension which she would otherwise have had, but also the pension to which she was already actually entitled. This ignores the fact that, if she was entitled to a pension which she could take at 60, in addition to whatever else she might be earning at the time in her residual earning capacity, she would be entitled to be paid that pension for five years between 60 and 65 and would not have to wait to 65 to start it. Consequently, he argues that the Tribunal should have used a multiplier of 12.12. It seems to me that this argument, though small in the overall scheme of things, may indicate a discrete error on the part of the Tribunal and seems to me arguable. 63. The next point was that the Tribunal had not allowed anything for the possibility that the Claimant might have a pension from the earnings she may yet earn. Since all employers are obliged to join what is known as the NEST scheme, due to be introduced, this should have been recognised by the Tribunal. In my view the Tribunal was entitled to apply the Guidelines as it did. I am not satisfied that there is any sufficient argument here suitable for a Full Hearing of the appeal which detracts from the overall task here of the Tribunal in giving a fair, albeit broad brush assessment, of the Claimant’s loss arising from the wrong done to her. 64. It is said that the Tribunal failed to consider withdrawal factors, that is the risk of the Claimant leaving her employment earlier than her projected retirement age. This is not a separate point. If the multiplier is properly calculated, it will take account of that risk, as will the reduction, if there be any, from 100% to some lower figure in light of factors such as I have identified which make me regard the 100% point as arguable. 65. Next, Mr Healy argues that the Tribunal was wrong to follow the decision in Yorkshire Housing Ltd v Cuerden [2010] U KEAT/0397/09/SM that an award for pension loss is taxable. He argues that Cuerden deals with a different section of statute. The response given, on what is an inter parties Preliminary Hearing, though I found it unnecessary to call significantly upon Mr Anderson, was to refer me to the case of Moorthy v Commisioners for HM Revenue and Customs , a decision of the First-tier Tribunal in the Tax Chamber, reported at[2015] IRLR 4 , in which the Tribunal emphasised at paragraph 64 that section 401 of the ITEPA was a very widely drawn provision: “This is a very widely drawn provision. Not only does it catch payments made directly in consideration of a termination, or directly in consequence of a termination, but indirect payments of either type, but is then further expanded to include payments which are not even in consideration or in consequence of a termination but ‘ otherwise in connection with’ a termination.” 66. It is well settled in employment law that pension is to be treated as deferred pay, that pension in payment is taxable and that therefore any sum paid in respect of a loss of that which would be taxable as representing deferred earnings is within the taxing statutes. I see no problem with the Tribunal here following Cuerden . I do not see the difference in statutory section as relevant to the issue. 67. The Respondent complains that before finalising the Judgment the Tribunal did not look at the case in the round and consider whether the amount awarded was a sensible and just reflection of the various chances it had assessed. To my mind this is not a proper ground of appeal where the Tribunal has approached the task in the way which it did here. 68. The third category under which the grounds of appeal fell was perversity. I shall deal with this shortly. Perversity is a high hurdle. There has to be, in effect, no evidence upon which the Tribunal could rely, or a decision has to be so startling in its result that an observer would exclaim in astonished fashion. The point has been expressed in different terms in a number of authorities, which it is unnecessary for me to repeat here. The findings attacked at 3.21 were the additional injury to feelings award of£15,000 . In my view this was plainly an additional award consequent upon the redundancy, the additional feelings which it caused and the additional injury. There is no prospect of that being regarded as perverse. Whatever one may say about the award, it was within the entitlement of the Tribunal to make it. The Tribunal’s conclusion that there was no chance of the Claimant returning to teaching is one within the entitlement of the Tribunal to make, as I have indicated. It did not have to follow the evidence of Dr Mumford and of Mr McNaught that they would “not rule out” the prospect of a return to teaching. The Tribunal was entitled to, indeed bound to, rely upon its own experience and assessment. 69. The other items I can deal with comprehensively without descending to detail in which in what is already too overlong a Judgment, With the exception of the argument in respect of the 100% chance of the Claimant becoming a Head Teacher by aged 50, the various matters referred to are not matters which would properly pass the hurdle of arguability. Conclusions 70. On the Preliminary Hearing it follows that I consider that no ground has any realistic prospect of success, save two. I refer to them as two grounds although each has a life under the separate headings. In particular the central ground is the argument that the Tribunal was not entitled, either as a matter of principle or on the evidence, it being perverse to do so, or a matter of failing properly to explain, to decide that the Claimant would inevitably have become a Head Teacher at the age of 50 and maintained that Headship all the way through to the age of 65. To that extent there is room for argument that the assessment in respect of future loss was wrong. The second argument is the lesser point in respect of the multiplier in respect of the pension which would in any event be payable to the Claimant and whether too modest a multiplier was adopted given the principles which the Tribunal were applying. The Claimant’s Appeal 71. The Claimant’s appeal, for which she had leave, focuses on the approach which the Tribunal took to the question of grossing up at paragraph 74 (set out above). The Claimant argued on the application for reconsideration that the effect of that was actually to produce in her hand, after taxation, a figure less than the Tribunal thought was full and proper compensation. The Tribunal did not accept that argument. It did so because: “… The Tribunal agreed with Mr Healy that it was difficult to understand what the claimant’s argument was to justify a further grossing up of the already grossed up award. Mr Falkenstein [he then being counsel for the claimant] was unable to provide any further clarification at the hearing. …”