A question that comes up periodically is how much compensation someone who is excluded from a voluntary severance scheme for discriminatory reasons would be entitled to receive. It might appear that because the person has remained in work, they have suffered no loss, so their compensation should be limited to an injury to feelings award. A recent EAT decision takes a different approach, finding that an employee in that situation was entitled to the severance payment she would have received had her application been accepted, even though she had in fact kept on working.

In order to reduce costs and staff numbers, the Land Registry offered staff the opportunity to volunteer for an early severance scheme. The claimant applied. However, a decision was taken that certain staff who were on a career break should not be considered for release under the scheme. The claimant was on a career break at the time she applied and her application for voluntary severance was not considered. This was found to amount to indirect sex discrimination, because it placed women at a disadvantage and the employer could not justify the practice.

The next question for the EAT was how to assess the claimant's compensation. The tribunal awarded injury to feelings compensation of £12,000, plus a further sum of approximately £70,000, which represented the payment she would have received had her application for voluntary severance been accepted. The EAT upheld the decision and rejected the employer's argument that the employee could not show any loss because she had remained in employment. It accepted the claimant's evidence that, had she taken the early severance payment, she would have found other work at a similar rate of pay elsewhere. On that basis, her loss was the full amount of the severance payment and she did not have to offset her continuing earnings from the Land Registry against that amount.