GAB Robins (UK) Ltd v Triggs

Section 123(1) of the Employment Rights Act 1996 states that the compensatory award for unfair dismissal is to compensate employees for any loss they have incurred "in consequence of the dismissal” if it can be attributed to something that the employer did.

In GAB Robins (UK) Ltd v Triggs, the Employment Appeal Tribunal (EAT) said that the employee’s loss of earnings was caused by her constructive dismissal, even though she had been on sick leave for the previous four months.

Basic facts

Since starting work in September 1999, Mrs Triggs regularly worked excessive hours for no extra pay. In April 2001, one of her bosses raised the issue with his boss, Mr Baldock (who she also complained of bullying her) but nothing changed.

In August 2003 she collapsed and was signed off with stress. On 30 September 2004, after another bullying incident, she went off sick and was later diagnosed with anxiety and depression.

Mrs Triggs sent in a grievance letter in December 2004. After sending a reminder in January 2005, a meeting was finally arranged for later that month at her home with the HR manager, her direct boss and a company director. Mrs Triggs trembled throughout the meeting and was clearly unwell.

After the meeting, the HR manager suggested that she have an informal meeting with Mr Baldock to resolve matters. This was the last straw for Mrs Triggs and she wrote back on 15 February handing in her notice. She then claimed constructive unfair dismissal.

Tribunal decision

The tribunal said it was obvious that Mrs Triggs was overworked, made worse by the way Mr Baldock spoke to her. Her trust and confidence in the company finally broke down when it failed to carry out a proper investigation into her grievance.

It concluded that Mrs Triggs resigned because of the way the company behaved towards her, and despite knowing her situation, did nothing to make it better. It said that Mrs Triggs remained an employee until 15 March and was then unfairly dismissed. It awarded her loss of earnings from that date.

Appeal arguments

The company said she was not entitled to claim loss of earnings. It argued that had she resigned on 30 September and then proved that her illness was caused by that dismissal, she might have succeeded. However, she did not do that. Instead, she stayed on and affirmed the contract. When she did finally resign, she could not then argue that an illness that started four months earlier had come about as a consequence of her dismissal.

Mrs Triggs argued, on the other hand, that her employer’s behaviour had amounted to a breach of contract which she finally “accepted” when she wrote to them on 15 February 2005. It was their conduct that led to her being unable to work from 30 September, and which continued after her employment came to an end on 15 March 2005.

EAT decision

The EAT agreed that if Mrs Triggs had actually been dismissed in February 2005, her illness could not have been caused by the dismissal. But that was not what happened.

Instead, the company had consistently breached the implied term of trust and confidence over a long period of time, dating back to 2001. Their conduct formed part of the constructive dismissal and led to her breakdown on 30 September 2004. Her ill health must therefore be treated “as a consequence of the dismissal” leading to loss of earnings which she would otherwise have received at the full rate. Her loss was therefore “attributable to action taken by the employer.”

The EAT concluded that her compensatory award should be calculated accordingly, subject to the deduction of any incapacity benefit she had received.

Comment

Claimants in unfair dismissal cases are entitled to be compensated for any financial loss they suffer as a result of their dismissal. If the dismissal itself has caused the claimant to become ill (affecting their ability to obtain further work), the tribunal can take that into account in deciding the level of compensation.

Mrs Triggs’ case confirms that in a constructive dismissal claim, where the person becomes ill before they resign because of unfair treatment, a tribunal should also take that into account in deciding the level of the compensatory award.