In Foat v Department for Work and Pensions [2026] EAT 61, the EAT dismissed the claimant’s appeal against several aspects of a substantial disability discrimination remedy award but allowed the employer’s cross-appeal on the calculation of future loss. The decision is particularly useful on the deduction of PIP benefits, ACAS uplift assessments, unpleaded bonus claims, and the need to use net salary figures where future compensation will not be taxable.
Liability background
The Employment Tribunal had previously upheld four acts of disability-related harassment, namely: prohibiting the claimant from driving for work in February 2018, the manner of an April 2018 meeting, requiring attendance at a May 2019 review meeting in Ramsgate, and the claimant’s constructive dismissal, which was also held to be an unfair dismissal.
The Tribunal also upheld a failure to make reasonable adjustments, specifically the failure to offer workplace mediation. The claimant had longstanding mental health difficulties, but the Tribunal found that the respondent’s unlawful conduct materially caused severe depression, anxiety and fibromyalgia, while also recognising a pre-existing vulnerability to deterioration from workplace stressors.
Original remedy decision
The Tribunal’s original compensation award totalled £373,936.69. Major components were £20,000 for injury to feelings, £113,576 for pain, suffering and loss of amenity, £49,004.03 for past financial loss, and £130,492.28 for future losses, with an additional 2% ACAS uplift applied across all heads.
In assessing causation and future loss, the Tribunal found a 30% chance that, even without the unlawful acts, the claimant’s health would have broken down to a degree destroying his earning capacity. For future earnings, it used an Ogden multiplier of 8.81, then applied a 50% discount for non-mortality contingencies, producing an effective multiplier of 4.405.
Claimant’s appeal: ACAS uplift
The claimant challenged the 2% uplift, arguing inadequate reasons, failure to reflect the punitive element, failure to consider earlier factual findings, use of an impermissible ceiling, and perversity.
The EAT rejected all of those arguments. It held that the Tribunal had properly considered proportionality and what was just and equitable, was entitled to reduce what would otherwise have been a 7.5% uplift, and gave sufficient reasons for doing so.
Claimant’s appeal: PIP deduction
The claimant argued that PIP should not have been deducted from compensation because it was a disability-related benefit for care and mobility, not a loss-of-earnings replacement benefit, and therefore could only be set off against care-related claims. He also argued that his true loss included everyday care provided by his wife, even though that had not been claimed.
The EAT rejected that position. It held that there is no rule of law confining a state benefit to deduction only against a matching head of loss. The key question was whether the claimant received the benefit because of the respondent’s unlawful act; here, but for the unlawful conduct and resulting injury, he would not have received PIP. The EAT also held that the Tribunal could not compensate for unclaimed care losses, and was entitled to deal only with losses actually pleaded and proved.
Claimant’s appeal: future contingencies and bonus
On future contingencies, the claimant argued that the 50% discount to the future-loss multiplier was inadequately reasoned and failed to account for favourable possibilities such as promotion or higher public-sector pay.
The EAT dismissed this ground, holding that the Tribunal had carried out a permissible broad-brush assessment taking account of the claimant’s vulnerabilities, retirement assumptions, and other employment risks. It was also entitled to place little weight on promotion or future pay-rise arguments given the evidence.
The bonus complaint was also dismissed. Although a modest annual bonus claim was mentioned late in the remedy process, it was not included in the claim form or the Schedule of Loss and no amendment was made. The EAT held that the Tribunal did not err by failing to decide a claim that was not properly before it.
Respondent’s cross-appeal and varied award
The respondent succeeded on the sole cross-appeal point. The Tribunal had used a gross annual salary figure of £33,387.33 for future loss, despite having found that future compensation would not be taxable in the claimant’s hands. The EAT held this was an oversight, not a deliberate evaluative choice.
The correct net multiplicand was £24,706.62, so the future loss of earnings award was reduced from £147,071.19 to £108,833. The agreed revised figures were: future losses £92,254.09 and a grand total compensation award of £334,933.73. All other parts of the Tribunal’s judgment remained unchanged.
How would Lex HR have assessed this case before Tribunal?
To test Lex HR's Employment Tribunal Risk Analyser, we recreated a workplace scenario based on the facts reported in Foat v Department for Work and Pensions [2026] EAT 61. All references to the Tribunal's findings, compensation award and appeal outcome were removed before the scenario was analysed by Lex HR. The assessment below shows the claims Lex HR identified and the likely Tribunal outcomes based solely on those underlying facts.
Lex HR Employment Tribunal Risk Analysis
| Potential Employment Tribunal claim | Lex HR assessment | Risk score |
|---|---|---|
|
Disability discrimination arising from disability (s.15 Equality Act 2010) |
Likely to succeed in substantial part. The employee's severe depression, anxiety and fibromyalgia are likely to meet the legal definition of disability, and management were aware of his health difficulties. The driving restriction, conduct meeting, requirement to attend a review meeting, and failure to implement support measures such as mediation could all be viewed as unfavourable treatment arising from the employee's disability. While the employer may rely on operational or management justifications, the apparent lack of meaningful adjustments or exploration of alternatives would make defending the claim more difficult. This is the strongest potential claim identified from the facts provided. |
8/10 ■■■■■■■■□□ |
|
Failure to make reasonable adjustments (ss.20–21 Equality Act 2010) |
Likely to have reasonable prospects, although the outcome would depend on the evidence available. Potential workplace practices placing the employee at a disadvantage include the driving restriction, attendance requirements for meetings, and the failure to adapt management processes in light of known health conditions. Mediation, alternative meeting arrangements and other supportive measures appear to have been discussed but not implemented. The absence of evidence explaining why these options were rejected increases the risk of a successful claim. |
7/10 ■■■■■■■□□□ |
| Constructive unfair dismissal |
Moderate to high risk. A Tribunal could conclude that the cumulative effect of the driving restriction, conduct meeting, deteriorating working relationships, failure to progress mediation and insistence on a review meeting amounted to a breach of trust and confidence. The employee's resignation following these events could support an argument that the employment relationship had become untenable. The main uncertainties would be whether the employer's actions were sufficiently serious and whether the resignation followed closely enough after the final incident. |
7/10 ■■■■■■■□□□ |
|
Unfair dismissal (constructive) |
If constructive dismissal is established, an unfair dismissal claim would also have good prospects. The facts suggest limited evidence of medical investigation, consultation, occupational health involvement or serious consideration of alternatives before the relationship broke down. This increases the likelihood that a Tribunal would view the employer's response as falling outside the range of reasonable responses. |
6/10 ■■■■■■□□□□ |
|
Disability harassment (s.26 Equality Act 2010) |
Possible but less certain. The employee describes the conduct meeting and subsequent interactions as confrontational, upsetting and unsympathetic. A Tribunal could conclude that the treatment created a humiliating or degrading environment, particularly given the employee's known health conditions. However, the available facts do not clearly identify disability-related comments, hostility or behaviour specifically linked to the employee's disability, making this claim less certain than the others. |
4/10 ■■■■□□□□□□ |
|
Personal injury / psychiatric injury linked to ET claims |
Not usually a standalone Employment Tribunal claim, but relevant when assessing compensation. Medical evidence supports a deterioration in the employee's mental health and ability to work. However, there is also evidence of pre-existing mental health difficulties which may reduce the extent of any compensation awarded. If liability were established, psychiatric injury would likely increase overall compensation exposure but would remain subject to detailed medical evidence and causation arguments. |
4/10 ■■■■□□□□□□ |
How did Lex HR compare?
Using only a reconstructed workplace scenario based on the facts reported in Foat v Department for Work and Pensions [2026] EAT 61, Lex HR identified the key legal risks that ultimately featured in the dispute, including disability discrimination, reasonable adjustments, constructive dismissal and unfair dismissal. Notably, Lex did not simply mirror the Tribunal's eventual findings, assessing harassment as a lower-risk claim based solely on the facts presented. This demonstrates how Employment Tribunal risk analysis focuses on the evidence available at the time, rather than the benefit of hindsight.