Gab Robins (UK) Ltd v Triggs

Under section 123(1) of the Employment Rights Act 1996, compensation for unfair dismissal covers loss sustained in consequence of the dismissal and attributable to the employer. In a constructive dismissal, the employer’s repudiatory conduct is a necessary condition, but the dismissal is effected by the employee’s acceptance of it. Loss caused by antecedent breaches, including illness and reduced earning capacity arising before acceptance, does not become dismissal loss merely because the dismissal is constructive. Such loss falls outside the statutory unfair-dismissal award and may, if otherwise available, be pursued as a common-law claim.

Gillian Triggs succeeded before the Employment Tribunal in a claim for constructive unfair dismissal against her former employer, GAB Robins (UK) Limited. The Tribunal directed that compensation could include post-dismissal loss resulting from illness caused by the employer’s pre-dismissal conduct. The Employment Appeal Tribunal upheld those directions on 13 June 2007.

The employer appealed to the Court of Appeal on remedy alone. The issue was whether reduced earning capacity and consequential loss caused by antecedent breaches of the implied term of trust and confidence could be treated as loss in consequence of the constructive dismissal for the purposes of the statutory compensatory award.

1. The appeal was allowed. The Employment Appeal Tribunal had erred in upholding the Employment Tribunal’s approach. A declaratory order was to be substituted, setting out the proper basis for the remedy assessment.
2. Section 123(1) of the Employment Rights Act 1996 confines the compensatory award to loss sustained in consequence of the dismissal, so far as attributable to action taken by the employer. It does not permit an unfair-dismissal claim to operate as a claim for damages for the employer’s prior fundamental breach of contract.
3. The distinction drawn by the House of Lords in Eastwood and another v Magnox Electric plc; McCabe v Cornwall County Council and others [2004] IRLR 733 was decisive. Loss flowing from the dismissal falls within the statutory jurisdiction. Loss flowing directly from antecedent breaches, including illness caused by pre-dismissal treatment, is independent of the dismissal and belongs, if otherwise recoverable, to a common-law claim.
4. In constructive dismissal, the employer’s repudiatory conduct is an essential condition of the dismissal, but it is the employee’s acceptance of that conduct which effects the dismissal. Damage caused by the prior conduct is not caused by, or suffered in consequence of, the subsequent acceptance. The fact that the dismissal is constructive therefore does not alter the causal analysis applicable to an actual dismissal.
5. Mrs Triggs’s illness and reduced earning capacity had been caused by the employer’s antecedent conduct before she accepted the repudiatory breach. The resulting future loss was therefore not recoverable under section 123. The Employment Tribunal’s separate recognition that pre-dismissal wages, psychiatric injury and other overlapping losses might be pursued at common law, subject to avoiding double recovery, was not criticised.

• Employment Tribunal: upheld the constructive unfair-dismissal claim and directed that compensation be assessed at a separate remedy hearing. Reasons were promulgated on 28 December 2006.
• Employment Appeal Tribunal: upheld the Employment Tribunal’s liability decision and remedy directions by an order dated 13 June 2007.
• Court of Appeal (Civil Division): allowed the employer’s appeal on the remedy directions and held that loss caused by antecedent breaches could not be included in the statutory compensatory award.