The Court of Appeal, in GAB Robins v Triggs, has overturned the EAT's decision dealing with compensation for constructive dismissal (see bulletin 14/6/07).
The decision confirms that, even in cases of constructive dismissal, an employment tribunal can only award losses that flow from an actual dismissal and reverts back to the accepted orthodoxy seen in Johnson v Unisys and Eastwood and another v Magnox Electric Plc. Thus Mrs Triggs could not recover unfair dismissal compensation for losses caused by bullying at work, even though the bullying led to her (constructive) dismissal.
Rimer LJ stated that antecedent breaches could not be considered as "constituting the dismissal" and losses flowing from them fall outside the "Johnson exclusion area" as such losses are "not caused by, or a consequence, of the dismissal at all". It was held that in cases of constructive unfair dismissal the employer's repudiatory conduct is "not conduct that effects the dismissal" and "damage caused by that conduct is not damage suffered in consequence of the dismissal". The Claimant already has an "accrued cause of action" in respect of this damage in the form of a common law claim.
[Thanks to David Bickford of Penningtons LLP, who was instructed on behalf of the successful Appellant, for preparing this summary]