United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellant	Mr F H Lefevre, Solicitor Of- Quantum Claims Employment Division 70 Carden Place Queens Cross ABERDEEN AB10 1UP
For the Respondents	Mr N Jew, Solicitor Of- DLA Solicitors Victoria Square House Victoria Square BIRMINGHAM B2 4DL


 


LORD JOHNSTON:

1. This appeal, at the instance of the applicant appellant, is limited to two aspects of the compensation order that was made by the Employment Tribunal consequent upon its finding of unfair dismissal in respect of the termination of the appellant's employment with the respondents.
2. In this respect, the relevant part of the judgment is as follows:-

"Compensatory Award: the applicant has not worked since the time of his dismissal and stated in evidence that this was due partly to his medical condition – reactive depression – and partly due to the reason for his dismissal. A Tribunal, in calculating the compensatory award, usually firstly considers the loss of the applicant in the period from the date of dismissal to the date of the hearing. In this case, it was submitted by the respondent's representative that the applicant had suffered no loss as he had not been fit for work. It was submitted by the applicant's representative however that the cause of the applicant's ill-health was a matter that could be considered by this Tribunal. We were referred to the case of The Governors of Hanson School v Mr C S Edwards, an Employment Appeal Tribunal decision delivered on the 11^th January 2001. That case concerned the dismissal of an employee on grounds of capability, where it was alleged the employers had caused the illness leading to the dismissal on those grounds.

We distinguished the present case from the one to which we were referred on the grounds that this was not a case where the applicant alleged the employer's conduct led to his depression which in turn led to his dismissal. This is a case where the employee claims he suffered ill health as a result of the unfair dismissal. We referred to the case of Devine v Designer Flowers Wholesale Florist Sundries Ltd 1993 IRLR 517. In that case an employee's dismissal caused her to suffer anxiety and depression which rendered her unfit for work. The EAT stated that the fact that the employee's incapacity was caused by the unfair dismissal did not necessarily mean that she was entitled to compensation for the whole period of the incapacity. It is for the Tribunal to decide how far an employee's losses were attributable to action taken by the employer and to arrive at a sum that is just and equitable. The Tribunal may want to consider, for example, whether the illness would have manifested itself in any event. It is also important to ascertain the extent to which the illness was actually caused by the dismissal, as opposed to the manner in which the dismissal was carried out, it being well established that the manner of a dismissal is not a proper subject of compensation.

The applicant had produced a medical report from his Doctor dated 24^th August 2001: that report recorded – in summary – that it was felt the applicant was suffering from reactive depression on the 8^th January 2001 and he was prescribed antidepressants. He had suffered similar symptoms of depression five years previously. He was reviewed on the 26^th March as his asthma had been exacerbated. He was admitted to hospital on the 3^rd August with chest pains. He was finally reviewed in August 2001 feeling much brighter. We noted however that the applicant's evidence had been that he did not consider he would be fit to return to work until the decision of this Tribunal was issued. We noted we were not provided with a medical report for the period August to December.

We took all of the above points into account and decided that it would not be just and equitable to award the applicant compensation for the period from the date of dismissal to the date of this hearing. We did however decide that the applicant should receive an award of six months future loss: we were of the opinion that the applicant will be fit to return to work and we expect that he will be able to find alternative work within this period taking into account his skills and experience. The applicant earned £1400 net per month and is accordingly awarded £8400. We also award the sum of £250 for loss of employment rights."

3. Mr Lefevre, appearing for the appellant, submitted that the reasoning of the Tribunal was defective, inasmuch, that they had not paid proper attention to the medical evidence and, in any event, had given no reasons for why they had determined it was just and equitable not to include the whole period between the date of dismissal and the date of the hearing as the basis for a compensatory order. It was, furthermore, he submitted, inconsistent with the fact that they had made an award for future loss which had to be attributable, he submitted, to the continuing presence of the illness which, in turn, based the claim.
4. He had a subsidiary point that, in any event, whatever happened, the claimant was entitled to notice pay of one month's wages.
5. Mr Jew, appearing for the respondent, disputed the latter fact only on the basis that it had not been pleaded. On the substantive issue he submitted that the Tribunal had properly assessed the question, taken into account the relevant authorities and, particularly, had decided against the background of the whole evidence that the applicant was not entitled to the whole period against a background of him having had a depressive illness in the past. He was forced, however, to accept that the reasoning was lacking any precise terms.
6. We were referred to Edwards v Governors of Hanson School [2001] IRLR 733, Devine v Designer Flowers Wholesale Florist Sundries Ltd [1993] IRLR 517 and P J Fougere v Phoenix Motor Co Ltd [1976] IRLR 259.
7. We accept the submissions of Mr Lefevre in their entirety.
8. We are satisfied that there is inconsistency in the reasoning of the Tribunal as between the award of future loss and the award of only part of the period between the date of dismissal and the date of the hearing. Even if that were not so, the Tribunal has not given any reasons for its declaration that it is just and equitable to limit the award in the way they did. Both parties are entitled to know the basis upon which the Tribunal reaches a decision whether on the merits or on compensation. Here, it is impossible to determine what limited the period in the mind of the Tribunal against a background of a finding in fact that the appellant suffers from a reactive depressive illness and probably has done so from the date of his initial suspension and, certainly, from the date of dismissal. There is therefore a causal connection between the dismissal and the illness which bases a claim for compensation.
9. In these circumstances the issue of notice is redundant.
10. Parties were agreed the relevant sum, if we were in favour of the appellant, was £15,050. We will accordingly allow the appeal and increase the award made by that sum.