Although the tribunal found in Shittu v Maudsley NHS Foundation Trust that Mr Shittu had been unfairly constructively dismissed, it did not award him compensation for loss of earnings arising from his dismissal. The Employment Appeal Tribunal (EAT) held that as the tribunal had found there was 100 per chance that he would have resigned on the same date, irrespective of whether or not he was constructively dismissed, it was correct to make that assessment.


Basic facts

Mr Shittu was diagnosed with bowel cancer in 2009, making him a disabled person under the Equality Act. In April 2015, he took a day off work to have a check-up and colonoscopy but did not record the appointment in line with the trust’s sickness and hospital appointment reporting procedure. Shortly afterwards, he went off sick with stress for a long period.

When he received his pay slip for April, he noticed that he was missing a day’s pay. He wrote to his manager, Ms Adejobe, about the deduction and although they were in weekly contact, the issue was never addressed. In July 2015, along with three other colleagues, he lodged a grievance against Ms Adejobe, alleging bullying and harassment. The grievance was dismissed, with no right of appeal. In April 2016, he went off sick again with stress and resigned on 10 August.

He then lodged a number of wide-ranging tribunal claims against the trust, including constructive dismissal for fundamental breach of contract (the deduction of a day’s pay) and disability discrimination.


Tribunal decision

The tribunal dismissed his allegation of an unlawful deduction from pay as it was out of time. However, as it related to a hospital appointment about his disability, it held that the trust’s failure to deal with his complaint amounted to “conduct without reasonable and proper cause” likely to damage the implied term of trust and confidence. As Mr Shittu had resigned partly in response to the breach, it found he had been unfairly constructively dismissed. The trust’s failure to address Mr Shittu’s concerns also constituted disability discrimination.

At the hearing to decide what compensation he should receive, however, the tribunal only awarded him his basic award without any compensatory award (loss of earnings) on the basis that he would have been dismissed fairly at a later date. It also held that he would have resigned anyway around the same time, even if he had not suffered the deduction.

Mr Shittu appealed against the tribunal’s remedy assessment, arguing that the tribunal had approached the issue on the balance of probabilities, rather than on the loss of a chance.


EAT decision

The EAT disagreed, however, holding that the tribunal was entitled to find, on the facts of this case, that there was a 100 per cent chance that Mr Shittu would have resigned on the same date, even if the trust had not fundamentally breached his contract.

It emphasised, however, that tribunals can only refuse to make an award of loss of earnings compensation (as opposed to making a percentage deduction) if they are 100 per cent confident that resignation would have occurred on the same date as the dismissal, or whatever date it had identified.

The EAT also distinguished the decision of the House of Lords in Perry v Raleys Solicitors which relates to professional negligence claims in which it was held that counterfactual matters (what a claimant would have done had the wrongful act not occurred) are to be decided on the balance of probabilities; whereas matters which depend on what a third party would have done (i.e. the professional who had been negligent) are to be assessed on the basis of a loss of chance. The EAT made clear that this decision does not, however, apply to unfair or discriminatory dismissal claims brought in the tribunal.