The EAT has handed down an important decision, GAB Robins v Trigg, dealing with the calculation of a compensatory award for a constructively dismissed employee who had been off work sick.
The issue, on which there was no direct authority, was whether such an employee's loss of earnings has been caused by the constructive dismissal or, instead, caused by her long-term sick absence. The employer argued that since the employee had been off work for four months prior to her dismissal, her absence after the dismissal had not been caused by that dismissal.
HHJ Peter Clark distinguished an 'actual' dismissal, where loss of earnings might not be awarded, from a 'constructive' dismissal (para. 66). The constructive dismissal covered a whole series of events, not just the 'last straw' (failure to deal with a grievance properly), some of which were the incidents of bullying and overwork which gave rise to the sickness absence in the first place.
In those circumstances, the course of conduct by the employer amounted to a breach of the implied term, formed part of the constructive dismissal, and thus the Claimant’s ill-health caused by that breach is to be treated as a consequence of the dismissal leading to loss of earnings which would otherwise have been received at the full rate from the employer, such loss being attributable to action taken by the employer (para. 75)