Brian Gourlay 

West Dunbartonshire Council

EAT allowed appeal relating to a remedy hearing where the claimant’s future loss award was reduced by 80% relating to the likelihood that he would have been given ill-health retirement for another reason than the episode caused by the discriminatory conduct. The wrong question was asked by the Tribunal, so the appeal was allowed.

The Tribunal upheld the claimant’s claims for disability discrimination and victimisation.  The issue arose in relation to a subsequent remedy hearing when it was accepted that as a result of the discriminatory conduct suffered by the claimant, he developed a depressive episode rendering him permanently unfit for work. The Tribunal assessed past and future wage loss/pension loss but reduced the figure by 80% based upon the possibility that the claimant may have obtained ill health retirement on grounds unrelated to the depressive episode or that the employment would have come to an end in March 2017. 

The claimant appealed against the remedy reduction.

The claimant’s appeal centred upon the Tribunal making an error in law by applying a reduction when they had made a finding of fact that the discrimination had caused the depressive episode and the inability to work. The respondent also appealed stating that the award should have only been made to the date at which the Tribunal held that it was likely he would have been lawfully dismissed. 

The EAT held that the claimant was correct when it came to the error in law about the reduction of the award. The question in law is whether it was possible that a lawful and non-discriminatory dismissal would have had the same effect.  That question was not considered by the Tribunal.  As a result, the reduction being made was based upon an error of law and was not directed towards the correct point. On this point, the appeal was allowed, and the case was to be remitted back to the Tribunal.

The respondent’s cross-appeal failed as the argument was predicated upon the error of law made by the Tribunal – there was no basis to apportion the harm by the Tribunal and an extension of that, which was requested in the respondent’s appeal, could not be sustained.

This case provides a useful insight into the particularities as they pertain to remedies and how awards for future loss should be given where discrimination has caused harm to the extent that an individual cannot work.  The question to be asked, as noted by the EAT, is whether it was possible that a lawful and non-discriminatory dismissal would have had the same effect.  This is the key question and as it was not asked the Tribunal’s decision was successfully appealed.

You can read the case in full here:
https://assets.publishing.service.gov.uk/media/67ced5f5a615dc906880c567/Mr_Brian_Gourlay_v_West_Dunbartonshire_Council__2025__EAT_29.pdf