Employment Flash - 18th March 2010

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Supervening illness following dismissal but unconnected to dismissal does not necessarily staunch the flow of loss stemming from a dismissal...

Wood v Mitchell SA Ltd [2010] UKEAT 0018 10 CEA

W successfully recovered £5,842.14 for unfair dismissal. W thought it should have been more and that the ET had erred in its approach to his post employment illness and how that would affect the losses that flowed from the dismissal. W did not appeal the ET's finding that his ill health subsequent to his dismissal was as a result of his dismissal. W complained that the ET should have asked itself: for how long would W have been employed, but for the dismissal?

The EAT agreed about the question and disagreed with the ET about its conclusion. Contracts of employment provide benefits to employees even when they become ill and that illness is not connected to the employment: sick pay; statutory sick pay; investigation by the employer of when the employee will be fit to return; possible return of the employee before the employer could fairly dismiss. An ET ought generally to take account of such matters and estimate their financial value. Generally the date that ill health supervened will not be the cut off date: (a) for how long would the employee have been employed? (b) what pay or other benefits would have accrued to the employee during that employment even though the employee is ill? (c) would the employee have returned to work?

There may be cases where the employee has brought his illness on himself and it would be just and equitable to treat the date of illness as the cut off point, but those cases would be unusual. If therefore an employee can expect to receive benefits even when he is ill for reasons unconnected with his employment and he unfairly loses those benefits through being unfairly dismissed, then the loss will generally be attribuatble to the dismissal and it will be just and equitable to compensate the employee for the loss.

Software 2000 Ltd v Andrews [2007] IRLR 568 still provides a full discussion of cases in relation to compensation of this type, although with the repeal of s.98A ERA some of the guidance has been overtaken.