The claimant succeeded in her claim for unfair dismissal, but now appealed against the reversal of the decision by the EAT. She had been dismissed for incapability to which she had contributed by her conduct. She had refused a move to another bank of the branch which would upset her child care arrangements. She was then off work for stress, and it was suggested that she would be unable to return. The EAT said that the contribution by the company to that stress had to be disregarded.
Held: The appeal failed.
The court approved and was unwilling to add to the EAT judgment which had analysed the authorities in these terms: ‘In Betty Morison P appeared to say that the fact that the employer had been responsible for the incapacity which was the reason for a dismissal should as a matter of principle be ignored in deciding whether it was reasonable to dismiss for that reason. But Bell J in Edwards and Judge Reid QC in Frewin expressed the view that, if that was what Morison P meant, it over-stated the position. We agree. It seems to us that there must be cases where the fact that the employer is in one sense or another responsible for an employee’s incapacity is, as a matter of common sense and common fairness, relevant to whether, and if so when, it is reasonable to dismiss him for that incapacity. It may, for example, be necessary in such a case to ‘go the extra mile’ in finding alternative employment for such an employee, or to put up with a longer period of sickness absence than would otherwise be reasonable. (We need not consider the further example, suggested by Bell J in Edwards, of a case where the employer, or someone for whose acts he is responsible, has maliciously injured the claimant, since there is no suggestion that those are the facts here. But we should say that we find some difficulty with the implication that in such a case there could never be a fair dismissal.) However, we accept, as did Bell J and Judge Reid, that much of what Morison P said in Betty was important and plainly correct. Thus it must be right that the fact that an employer has caused the incapacity in question, however culpably, cannot preclude him for ever from effecting a fair dismissal. If it were otherwise, employers would in such cases be obliged to retain on their books indefinitely employees who were incapable of any useful work. Employees who have been injured as a result of a breach of duty by their employers are entitled to compensation in the ordinary courts, which in an appropriate case will include compensation for lost earnings and lost earning capacity: tribunals must resist the temptation of being led by sympathy for the employee into including granting by way of compensation for unfair dismissal what is in truth an award of compensation for injury. We also agree with Morison P in sounding a note of caution about how often it will be necessary or appropriate for a tribunal to undertake an enquiry into the employer’s responsibility for the original illness or accident, at least where that is genuinely in issue: its concern will be with the reasonableness of the employer’s conduct on the basis of what he reasonably knew or believed at the time of dismissal, and for that purpose a definitive decision on culpability or causation may be unnecessary.’
Judges:
Buxton LJ, Rix LJ, Wall LJ
Citations:
[2007] EWCA Civ 806, [2007] IRLR 895, [2008] ICR 108
Links:
Statutes:
Employment Rights Act 1996 98(1) 98(2)(a)
Jurisdiction:
England and Wales
Citing:
Cited – Polkey v A E Dayton Services Limited HL 19-Nov-1987
Mr Polkey was employed as a driver. The company decided to replace four van drivers with two van salesmen and a representative. Mr Polkey and two other van drivers were made redundant. Without warning, he was called in and informed that he had been . .
Cited – London Fire and Civil Defence Authority v Betty EAT 1994
Tribunals should not be concerned to ascertain whether the illness was caused or contributed to by the employer. The question in issue is whether, in the light of the employee’s medical condition and the inquiries and procedures the employer made . .
Cited – Edwards v The Governors of Hanson School EAT 11-Jan-2001
EAT Unfair Dismissal – Procedural fairness/automatically unfair dismissal. . .
Cited – Frewin v Consignia Plc EAT 9-Jun-2003
EAT Unfair Dismissal – Reason for dismissal including substantial other reason. . .
Cited by:
Cited – Stockton on Tees Borough Council v Aylott EAT 11-Mar-2009
EAT JURISDICTIONAL POINTS
Extension of time: just and equitable
2002 Act and pre-action requirements
DISABILITY DISCRIMINATION
Disability related discrimination
Direct disability . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 12 November 2022; Ref: scu.258475
