COMPENSATION

Seafield Holdings Ltd (trading as Seafield Logistics) v Drewett

EAT: Silber J, Ms V Branney and Mrs D M Palmer: 27 June 2006

An employment tribunal found that the claimant, who suffered from a long standing medical condition caused by matrimonial and domestic difficulties, had been unfairly constructively dismissed by her employers, who had exacerbated her pre-existing medical condition by their treatment of her. When assessing compensation pursuant to section 123 of the Employment Rights Act 1996, the tribunal asked itself whether but for the employers' actions the claimant would have been unable to return to work in any event and decided that there was no material evidence to suggest that any extrinsic factors would have resulted in the claimant being unable to work.

The employers appealed against the award.

The Employment Appeal Tribunal held:
(1) The evidence before the tribunal, which consisted of the notes of her general practitioner and the general practitioner's correspondence with other medical advisers, supported the conclusion that, on the balance of probabilities, it was the employers' treatment of the claimant that was the cause of her problems at the time of the hearing, and, since in order to establish perversity an overwhelming case had to be made that the tribunal had reached a decision which no reasonable tribunal would have reached, it could not be shown that the decision of the tribunal was perverse.

(2) While the employment tribunal was correct to apply a "but for" test in respect of past losses, when determining the cause of future losses the employment tribunal should have assessed, on the basis of a percentage chance, the prospect of the claimant being unable to work because of her underlying illness, which was not caused by the employers' conduct. Accordingly, the case would be remitted to the tribunal to determine the claimant's losses on the basis of the prospect of her having suffered from her pre-existing illness after the remedies hearing.

The appeal was allowed.

Appearances: James Robinson (Foys, Worksop) for the employers; Mark Gargan (Atteys, Doncaster) for the claimant.