The claimant had been dismissed by reason of disability and so was entitled to compensation for the associated psychological injury. She was then dismissed unfairly, and the employer sought to argue that the dismissal constituted a novus actus and ended the period for which she was entitled to compensation for loss of earnings.
Held: An employer who had unfairly dismissed a claimant could not rely upon its wrongful act to minimise the claimant’s compensation.
Rix LJ said that: ‘There was the clearest evidence in this case that the psychiatric harm caused by the act of discrimination and its impact on the respondent’s ability to work continued far beyond the date of the unfair dismissal and in the absence of a fair dismissal we see no reason why the chain of compensation should be broken at that date.
I agree. Indeed, despite the skill and enthusiasm with which Mr Underwood has presented his submissions, the argument that the Prison Service’s own act of unfair dismissal can be said to break the chain of causation is very puzzling to me. This is the language of new intervening act, but I do not understand how it is said that the unfair dismissal is an ‘intervening’ act, when it is the act of the tortfeasor itself. Nothing in the submissions began to explain this to me; indeed, we were not shown any authority or learning on the concept of new intervening act. McGregor on Damages, 17th edn, 2003, speaks in this context of the intervening acts of a third party (at paras 6-031ff) and of the claimant (at paras 6-057ff) but not of the tortfeasor. Nor do I understand why the mere act of dismissal, even if it were justified which of course it was not, could do more to wash away the long-lasting effects of the prior discriminatory act than merely to prevent the damages for loss of earnings being measured by a comparison with earnings under the old employment.’
and he went on to distinguish such a case from one in which the claimant’s employment had come to an end by reason of a repudiatory breach of contract of the claimant: ‘Of course, if a claimant commits a repudiatory breach of his own contract of employment, thereby entitling a defendant employer to terminate that contract by dismissing him, then it is possible, if necessary, to describe that as a new intervening repudiation as bringing the contract to an end, does not make his reaction the critical new act: it is the repudiatory conduct of the claimant which is significant, unless perchance it is waived. In any event, the repudiatory conduct might have taken place even prior to the tort of discrimination and be discovered only later: but if the contract was already potentially doomed to be lost upon discovery of the repudiatory conduct, then again the claimant has lost the value of that contract, once the employer had acted as he was entitled to do properly to accept the repudiation as bringing the contract to an end.’
Judges:
Rix, Wall, Hooper LJJ
Citations:
[2005] EWCA Civ 467, [2005] ICR 1206, [2005] IRLR 568
Links:
Jurisdiction:
England and Wales
Citing:
Appeal from – HM Prison Service v Beart EAT 14-Sep-2004
EAT Disability Discrimination – Compensation . .
See Also – H M Prison Service v J A Beart EAT 13-Mar-2002
EAT Disability Discrimination – Disability . .
See Also – Beart v HM Prison Service CA 23-Jan-2003
. .
Cited by:
Cited – Osei-Adjei v RM Education Ltd EAT 24-Sep-2013
EAT DISABILITY DISCRIMINATION – Compensation
The Claimant suffered an act of disability discrimination by reason of the Respondent’s failure to make a reasonable adjustment. He was for a time unfit to work . .
Lists of cited by and citing cases may be incomplete.
Discrimination, Damages
Updated: 29 June 2022; Ref: scu.224382
