GAB Robins (UK) Ltd v Triggs

EAT: Judge Peter Clark, Mr D J Jenkins and Mr M Worthington: 13 June 2007

The claimant made frequent complaints to her employers of overwork and bullying and on 30 September 2004 she was signed off work with stress and depression, initially receiving full pay, and then half pay. On 20 December she presented a written grievance, and on 26 January 2005 a meeting was held to consider her complaints, but the claimant took the view that the employers' response, on 9 February, failed to deal with her grievances properly and on 15 February she resigned. On her claim of constructive unfair dismissal, the employment tribunal found that, without reasonable cause, the employers had conducted themselves in a manner likely to cause their relationship with the claimant to break down and that the claimant had resigned in response to the cumulative impact of that conduct. It accordingly held that she had been unfairly dismissed; and it ruled that her compensation award under section 123 of the Employment Rights Act 1996 should include loss of earnings following her dismissal.

The employers appealed, contending, in respect of an award of compensation, that the claimant's loss of earnings flowed not from her dismissal but from her continuing incapacity to work.

The Employment Appeal Tribunal held:
(1) Where the employer's conduct of a grievance procedure was the "final straw" relied on as justifying resignation, the range of reasonable responses test had no application to that conduct, since the final straw, viewed alone, need not be unreasonable or blameworthy, though it had to be more than trivial and contribute something to the breach. The acts of overwork and bullying relied on by the claimant amounted cumulatively to a breach of the implied term by 30 September 2004 and, though the claimant affirmed the contract by continuing in employment when off sick, the employers' failure to carry out an adequate investigation into her grievances contributed materially to the earlier acts so as cumulatively to amount to a breach of the implied term entitling the claimant to terminate her employment for the purposes of section 95(1)(c) of the Employment Rights Act 1996.
(2) Had the claimant been dismissed by the employers rather than resigning, it could not have been said that her illness, which pre-dated the dismissal, was "in consequence of the dismissal" within the meaning of section 123(1) of the Employment Rights Act 1996, but "constructive dismissal", as defined by section 95(1)(c), consisted of both repudiatory conduct by the employer and acceptance of that breach by the employee, and as the claimant's ill-health was caused by the employers' repudiatory conduct it was to be treated as a consequence of the dismissal leading to loss of earnings, such loss being attributable to action taken by the employers, for the purposes of section 123(1).

The appeal was dismissed.

Appearances: Gary Self (Penningtons, Basingstoke) for the employers; Sarah Stanzel (Direct Public Access Scheme) for the claimant.