United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellants	Mr I Meth, Employment Law Consultant Of- MENTOR Services 2 Stewart Drive Clarkston GLASGOW G76 7EZ
For the Respondents	Mr P Thorpe, Representative Of- Citizens Advice Bureau 66 High Street IRVINE KA12 OBA


 


LORD JOHNSTON:

1. This appeal at the instance of the employer is restricted to the award of compensation in relation to a period of two years from the date of dismissal. No issue was taken as to the finding of unfair dismissal based upon constructive dismissal. It is accordingly important to look at the matter against that background.
2. The relevant part of the decision of the Tribunal is as follows;-

"The applicant has not been in employment since the time of her dismissal; she produced a letter from her doctor dated 18 September 2001 (Production A1) confirming that she has suffered from rheumatoid arthritis for the past 18 years; and that since June/July 2000 she had been anxious and unhappy about her situation at work. The episode at work had made her feel "totally miserable, and she is still very anxious and has lost confidence … at present she is unable to think of future employment".

In considering the matter of compensation in these circumstances, we took into account the case of Devine v Designer Flowers Wholesale Florist Sundries Ltd 1993 IRLR 517. In that case it was stated that; "An employee who has become unfit for work wholly or partly as a result of an unfair dismissal is entitled to compensation for loss of earnings at least for a reasonable period following the dismissal, until she might reasonably have been expected to find other employment. The Tribunal must have regard to the loss sustained by the employee, consider how far it is attributable to action taken by the employer and arrive at a sum which it considers just and equitable. There is no reason why the personal circumstances of the employee, including the effect of dismissal on her health, should not be taken into account in ascertaining the appropriate amount of compensation. However, the employee will not necessarily be entitled to loss of earnings for the whole period of unfitness for work."

The applicant was aged 60 at the time of the termination of her employment, and we noted that she had intended to work for a further period of two years until she was aged 62, in September 2002 (she would have been aged 62 in September 2002.) The applicant's employment terminated on the 27 January 2001 and the hearing was concluded on the 19 August 2002. This period virtually covers the period the applicant intended working (in other words the elements of loss to the date of the hearing and future loss are almost one and the same). We considered the applicant's stated intent of working for a further 2 years: we accepted that but for the issue regarding the bonus, the applicant would have continued to work for the respondent as she was the "breadwinner" in her family. We balanced against this the information from the doctor that she had been feeling unhappy and anxious. However, we reached the conclusion that the applicant would have continued to work for a further period of two years, notwithstanding being unhappy and anxious.

We asked ourselves whether it was just and equitable to award the applicant two years pay in the circumstances: after due consideration we were satisfied that it was just and equitable as we accepted the applicant would have continued to work for the respondent for this period had the incident regarding the bonus not taken place. This decision was further supported by the finding in fact that Ms Boslem took a calculated decision to offer the applicant a bonus in circumstances where it was never going to be paid.

The applicant is entitled to compensation for the period from 27 January 2001 until September 2002: this is a period of 19 months. 19 x £727 = £13,813."

3. Mr Meth, appearing for the appellants, submitted that the Tribunal had both misunderstood or misinterpreted Devine but had also misunderstood the medical evidence which revealed that there was evidence of mental stress prior to the dismissal which was prompted by one single issue, namely, the failure to pay a bonus which led to the resignation of the respondent employee and the subsequent finding of constructive dismissal. He submitted that, on any view of the matter, the word "partly" to be found in the quoted passage from Devine restricted the right of the Tribunal to award the full period of two years and the matter required to be reviewed, notwithstanding that the Tribunal had in fact reviewed its own decision at his request. He accepted that such a review could be carried out by a remit to the same Tribunal provided clear instructions were given to it as to how they should treat the medical evidence.
4. Mr Thorpe, appearing on behalf of the respondent, submitted that, properly understood in the context of section 123 of the Employment Rights Act 1996 ("The Act"), the Tribunal had not misdirected itself and had properly addressed the issue, namely, what was the loss that flowed from the unfair dismissal. If any question of mitigation arose, it required to be borne in mind that the respondent suffered from a long term illness but had intended to work for the next two years of her life at the time of the resignation, by reason of the fact that she was the breadwinner in the family. He submitted that it was a reasonable conclusion on the part of the Tribunal that it was unlikely that the respondent would obtain other employment, all things being equal.
5. In approaching this matter it is important to understand that within the terminology of section 123 of the Act, is to be found a reference to such as is attributable to the actions of the employer. This is very important since the case of Devine is concerned with a particular rather than a general issue, namely, how to approach the matter when the conduct of the employer, which in itself leads to the dismissal, has also caused or aggravated an illness in the employee. The more general issue is to be determined by what flows from the actions attributable to the employer, namely, the unfair dismissal and this can be a much broader issue even where health questions arise. Furthermore it is important to bear in mind that the phrase in the section "just and equitable" requires a much wider interpretation of issues of causation than such would be normally given to common law issues of damages following, say, from a claim for personal injury. It follows that in most cases what has actually happened in fact will base the measurement of compensation unless it can be shown that there was some intervening factor which would have happened in any event irrespective of the dismissal and this must be the fundamental approach. In this case, the respondent was unfairly dismissed and thus ceased to work against a background of her intent to continue to do so despite her health problems. The fact that they may have been exacerbated by the dismissal was nothing to the point. What matters is that she lost her job in the context of unfairness and is unlikely, in the circumstances, to find a replacement. The fact that she has not done so through illness, which has not been shown to have been inevitable, irrespective of the dismissal, merely enhances rather than creates the argument in her favour. It accordingly follows, in our opinion, that the Tribunal were more than entitled to conclude that her intention to work for a further two years was frustrated by what was found to have been a constructive dismissal. That is entirely attributable to the actions of the employer and, accordingly, justice and equity, as the Tribunal has found, require that she be compensated for the loss of those two years of earnings.
6. In our opinion this approach is unimpeachable and this appeal is accordingly refused.