gaskarth_mooneyEAT082013
EAT UNFAIR DISMISSAL
Compensation
Mitigation of loss
The Respondents sought to challenge the award of compensation awarded to a husband and wife who had been summarily and unfairly dismissed from their jobs running the Golden Lion. The first challenge was based on the argument that the award for loss of earnings covered a period during which the wife was unable to work not because of depression caused by the dismissal but because of organic symptoms not so caused and the husband, in not working in order to look after his wife, was away from work for reasons not attributable to the dismissals.
On that ‘attribution issue’, the Employment Tribunal had found that the depression caused the disputed absence ‘in no small part’. The correct test, derived from the Court of Session’s decision in Dignity Funerals v Bruce ([2005] IRLR 189) (which was not cited to the ET) is -was the loss caused by the dismissal ‘to any material extent’. The ET applied a more stringent test. It was open to them on the evidence, applying that test, to find in the wife’s favour. If the appeal failed in her case, it must fail in the husband’s case too.
There was a second issue as to whether the ET had, in calculating their awards, permitted to each Claimant a small sum by way of double recovery. On proper examination, it became clear that they had not done so.
Jeffrey Burke QC
[2013] UKEAT 0196 – 12 – 0508
Bailii
England and Wales
Employment, Damages
Updated: 09 November 2021; Ref: scu.514291