Edwards v Governors of Hanson School  IRLR 733
The situation is familiar to all trade union officials. Your member has a work related illness and the employer is moving to dismiss. At some stage you have to tell the employee that the fact they consider their employer caused the illness will have no bearing on the fairness of the dismissal itself. You go on to say it will be irrelevant to the level of their compensation even if they win their unfair dismissal case. They are aghast and cannot believe that can be so. They either lose confidence in your advice, or the judicial system. Or possibly both.
The situation has been significantly improved by the case of Edwards v Governors of Hanson School. Mr Edwards, a teacher at Hanson School, attributed his serious depression to years of unfair treatment at the hands of the school's headteacher. After six month's absence for depression he was referred to the occupational health service who did not consider he would be fit to return to work for the foreseeable future. He was dismissed.
He won his case at an Employment Tribunal on the grounds that there had been no proper consultation and the appeal process had not cured the unfairness. However, when it came to the remedy hearing the tribunal said that Mr Edwards' allegations about the headmaster's treatment of him - which he thought caused his illness - were irrelevant. In fact the Tribunal awarded no compensation as they thought he would have been dismissed even if a fair procedure had been followed.
Mr Edwards appealed. In a significant judgment the Employment Appeal Tribunal have drawn back from the earlier case of LFCDA v Betty  IRLR 384 which held that the duty to act fairly in dismissing on grounds of ill-health is unaffected by considerations as to who was responsible for the employee's unfitness for work.
The EAT said it will not always be the case that the cause of the incapacity for work is irrelevant. The example they gave was where the employer has acted maliciously or wilfully caused the incapacitating ill-health which then leads to dismissal. There is, the EAT say, no reason why that should not lead to a finding of unfair dismissal. In Mr Edwards' case there was no need to consider responsibility for the ill-health in looking at the fairness of the dismissal, but only because the tribunal had found it to be unfair for other reasons - lack of consultation.
But the Tribunal were wrong not to consider Mr Edwards' allegation in assessing compensation. The law does not require that questions of responsibility for an applicant's illness must be ignored when deciding whether it would be just and equitable to make a compensatory award for unfair dismissal. The words 'just and equitable' enable a tribunal to take full account of the conduct of the employer, as well as the employee, in assessing compensation providing the losses flow from the dismissal and the award is to compensate for actual losses. The tribunal's failure to carry out at least some investigation into Mr Edwards' allegations about the cause of his depression was not 'just and equitable in all the circumstances' and the question of a compensatory award has been remitted to a fresh tribunal.