R & M Gaskarth v Mooney & Anor

For unfair-dismissal compensation, where concurrent medical conditions may have caused an employee’s inability to work, the tribunal must determine whether the dismissal caused the wage loss to any material extent. If it did, compensation may be awarded even though another condition would also have prevented work.

A finding that inability to work was attributable to the dismissal “in no small part” applies at least that stringent material-causation standard. Appellate intervention is not justified where that conclusion was open on the available evidence and the tribunal’s reasons sufficiently disclose its basis.

A compensatory award must also avoid double recovery. Deducting assumed notice pay and then restoring the unpaid balance does not compensate the same loss twice.

The employers appealed against compensation awards for the unfair dismissal of Mr and Mrs Mooney, formerly joint managers of a public house. The Employment Tribunal had found their dismissals procedurally and substantively unfair and made separate compensatory awards.

Mrs Mooney was unable to work after dismissal. She suffered depression caused by the dismissal and loss of her home, alongside gallstones and hydronephrosis. The employers contended that the physical conditions, rather than the dismissal, accounted for part of the absence. They made a corresponding challenge to Mr Mooney’s award because he had cared for his wife.

The employers also alleged that each award included duplicate compensation for notice pay and loss of earnings. The central issues were attribution of wage loss and double recovery.

1. Appeal dismissed. The Employment Tribunal made no error of law in its awards to either claimant.
2. Under Employment Rights Act 1996, section 123(1), compensation for wage loss requires the tribunal to decide whether the dismissal caused the loss to any material extent. Where dismissal-related illness and an unrelated condition are concurrent possible causes of absence, the tribunal must determine whether, and for what period, the dismissal-related condition materially caused the inability to work.
3. The Tribunal’s finding that Mrs Mooney’s inability to work was attributable to the dismissal “in no small part” did not apply a lower test than material causation. It was, if anything, more stringent. The medical evidence and Mrs Mooney’s evidence permitted the finding that her continuing depression, caused by dismissal, materially caused her absence throughout the relevant period. There was no evidence that the depression had improved so that the physical conditions alone would have kept her from work.
4. The Tribunal could have expressed its findings more fully. However, its reasons sufficiently identified the issue and the factual basis of its conclusion, satisfying the requirements of Meek and rule 30(6) of the Tribunal Rules. The employers had not shown that the conclusion was perverse or unsupported by evidence.
5. The challenge to Mr Mooney’s award on the attribution issue necessarily failed once the challenge to Mrs Mooney’s award failed.
6. There was no double recovery. The Tribunal deducted four weeks’ notice pay from the earnings calculation as though it had all been received, then restored only the amount of notice pay which had in fact remained unpaid. The same approach was used for both claimants.

• Employment Appeal Tribunal: appeal dismissed: [2013] UKEAT 0196_12_0508.
• Employment Tribunal, Liverpool: found the dismissals procedurally and substantively unfair and awarded compensation. Its judgment was sent to the parties on 31 October 2011.