Fox v British Airways PLC [2013] EWCA Civ 972

Mr Fox was dismissed from British Airways after ill health. He died shortly afterwards. The father of Mr
Fox, issued a claim in the ET for Disability Discrimination and Unfair Dismissal. The ET held that the estate of Mr Fox could only recover a nominal award for the loss of the benefit and not the lump sum benefit itself. C appealed this decision. The appeal was allowed by the EAT which held that the lump sum death-in-service benefit was recoverable as a pecuniary loss. BA appealed the quantification of the award but not the entitlement.

Facts

BA dismissed Mr Fox on the basis of medical incapacity. In the month after his termination from BA he died. If Mr Fox had still been employed at the time of his death, approximately £85,000 would have been payable to his chosen beneficiaries. The father of Mr Fox (“Mr Fox senior”) issued proceedings in the ET claiming his son's dismissal was unfair and/or discriminatory based on his disability. He claimed that if Mr Fox had not been dismissed unfairly and/or discriminatorily, he would have been employed at the time he died and the lump sum benefit would have been payable to his beneficiaries. Mr Fox senior therefore sought the payment as a remedy. At a preliminary hearing the ET rejected the argument that the lump sum would be payable as damages for discrimination. They held that an award comparable to the loss of a statutory right usually £350 was appropriate. The EAT disagreed stating the full lump sum would be payable if Mr Fox senior succeeded at trial.

Held

The CofA dismissed the appeal from the EAT and held that the loss of the chance of having the death-in-service benefit paid out was a pecuniary loss which the deceased would have been able to pursue prior to his death. It was irrelevant that the actual payment would be paid out only after he was dead and to third party beneficiaries. As a result Mr Fox senior could pursue the pecuniary loss on Mr Fox's behalf. If he was successful in the substantive claims for unfair dismissal and discrimination, the estate of the deceased would be entitled to recover the entire lump sum death in service benefit.

Comment

Although this case turned specifically on the facts it is interesting nonetheless. The case reaffirms the principle that a personal representative can pursue or continue litigation in discrimination cases on behalf of a deceased employee for the benefit of his estate. The CofA also deal with some interesting issues of quantification of C's loss. Ordinarily where a claimant has suffered the loss of a benefit in the nature of life assurance as a result of a tort, the appropriate measure of damage would appear to be the cost of securing an equivalent benefit in the market. As the CofA put it: ‘once Mr Fox had died it was too late to seek alternative life insurance cover”. In those circumstances the CofA advised returning to first principles. C's estate was entitled to be put in the position that C would have been in had he not been dismissed when he was. The chances of him being dismissed before his death were too small to require any discount. At that point his beneficiaries would have become entitled to the payment of £85,000 and award of damages was therefore made in that sum.

The full transcript is here: http://www.bailii.org/ew/cases/EWCA/Civ/2013/972.html