Triggs v GAB Robins (UK) Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rimer,Lord Justice Lawrence Collins,Lord Justice Tuckey |
| Judgment Date | 30 January 2008 |
| Neutral Citation | [2008] EWCA Civ 17 |
| Docket Number | Case No: 2007/1687 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 January 2008 |
[2008] EWCA Civ 17
Lord Justice Tuckey
Lord Justice Lawrence Collins and
Lord Justice Rimer
Case No: 2007/1687
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(His Honour Judge Peter Clark presiding)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Andrew Clarke QC and Mr Gary Self (instructed by Penningtons Solicitors LLP) for the Appellant
Ms Ingrid Simler QC and Ms Sarah Stanzel (instructed by Holmes & Hills) for the Respondent
Hearing date: 10 December 2007
Introduction
This is an appeal against an order dated 13 June 2007 of the Employment Appeal Tribunal (His Honour Judge Peter Clark, Mr D. J. Jenkins OBE and Mr M. Worthington, “the EAT”) upholding a decision of the Employment Tribunal (Chairman, Ms S.E. Gilbert, “the ET”) promulgated with reasons on 28 December 2006. The claim was by Mrs Gillian Triggs against her former employer, GAB Robins (UK) Limited. It was for compensation for constructive unfair dismissal. The ET upheld her claim and directed themselves as to the basis upon which her compensation was to be assessed. The assessment was to be conducted at a separate remedy hearing.
The employer appealed to the EAT against both the decision that Mrs Triggs had been constructively unfairly dismissed and the ET's directions as to remedy. There is no further appeal to this court against the upholding by the EAT of the decision that Mrs Triggs was constructively unfairly dismissed. The employer's appeal, brought with the permission of the EAT, is solely against the upholding of the ET's remedy directions. The remedy hearing took place on 12 October 2007, with reasons promulgated on 18 October 2007, and we also have the benefit of those reasons.
The issue is ultimately a short one. The employer's case, presented to us by Mr Andrew Clarke QC leading Mr Gary Self, is that the ET misdirected themselves in holding that, in assessing Mrs Triggs's entitlement to compensation for the loss she sustained in consequence of the dismissal, account could and should be taken of the loss flowing from the employer's injurious, repudiatory conduct towards Mrs Triggs which she accepted so as to effect the dismissal in respect of which she brought her claim. That conduct had caused her to become ill, following which she left work and was on sick pay for part of the time leading up to the eventual dismissal. The employer's submission was that it was not open to the ET, in assessing compensation for her unfair dismissal, to have regard to that pre-dismissal conduct: the assessment must be confined to compensating her for the loss sustained by the dismissal itself, namely (in this case) compensating an employee who at the time of dismissal was already ill and on sick pay, being pay in respect of which her rights were shortly to be exhausted. The contrary argument of Ms Ingrid Simler QC, leading Ms Sarah Stanzel, for Mrs Triggs was that the ET directed themselves correctly as to the recoverable compensation and conducted the remedy hearing in accordance with those directions.
In deciding between the rival arguments, I will (i) summarise the facts, which I take from the judgment of the EAT; (ii) set out the relevant statutory provisions; (iii) refer to the ET's directions as to the assessment of compensation; and (iv) consider the correctness of those directions as a matter of principle.
The facts
The employer carries on business nationwide as chartered loss adjusters. Mrs Triggs commenced working for them at their Romford office on 6 September 1999. During the material time, she worked as a secretary/personal assistant to two investigators, Mr Carter and Mr Woffindin. She was a conscientious and loyal employee, who shouldered an excessive workload and put in long hours without extra pay in order to provide the necessary support to the two investigators. From about April 2001 Mr Carter raised with his manager, Mr Baldock, the problem of her workload. On 6 August 2003 Mrs Triggs collapsed at home, following which she was signed off work for a week with stress. Although the two investigators continued to raise the matter of her workload with Mr Baldock, she remained overworked. In addition, she found Mr Baldock's treatment of her such as to amount to bullying (the ET gave an example at [22] and [23] of their judgment).
On 30 September 2004 Mrs Triggs returned to work after two days' sick leave and had to suffer Mr Baldock shouting at her down the telephone. She decided she had had enough. She left the office that morning, never to return. Her doctor signed her off sick with stress and depression, later diagnosed as anxiety and depression. No-one from senior management contacted her. She became frightened to go out alone and spent time at home sobbing uncontrollably and sleeping for long periods.
On 19 October 2004 Mrs Triggs's HR manager, Angela Munn, wrote to her, informing her that as from 18 October she would only receive statutory sick pay. That decision was rescinded on 29 October, when Ms Munn wrote again to Mrs Triggs informing her that, in the exercise of its discretion, the employer would pay her full pay until 5 November.
On 20 December Mrs Triggs wrote a letter to Mr Latimer, a director, raising two matters by way of a grievance: (i) her alleged long term bullying by Mr Baldock, and (ii) her overwork. As to the latter, she estimated that over the previous three years she had put in 15 to 20 hours a week over and above her paid hours. She received no reply and sent a reminder on 17 January 2005. That provoked a response from Ms Munn the following day in which she raised two issues only, that of sick pay and Mrs Triggs's relationship with Mr Baldock. She ignored the problem of Mrs Triggs's workload.
A meeting was then arranged at Mrs Triggs's home on 26 January 2005, attended by Mrs Triggs, Mr Carter, Mr Latimer and Ms Munn. The ET found that it lasted two hours, during which Mrs Triggs outlined the history of her complaints of overwork and working under pressure, including increased pressure from Mr Baldock, which continued even after she had collapsed in August 2003. The ET found the meeting to have been an ordeal for her: she trembled throughout it and was clearly unwell, as was confirmed in an email that Ms Munn later sent to Mr Hessey, the group HR manager. Ms Munn followed the meeting with a letter of 9 February to Mrs Triggs. She proposed that Mrs Triggs would receive half pay from 5 November 2004 to 28 February 2005, and statutory sick pay of £66.15 a week from 1 March. As for the complaint against Mr Baldock, she wrote that she had investigated it and had spoken to Mr Baldock, whose account differed from Mrs Triggs's. She proposed that, before returning to work, Mrs Triggs should have an informal meeting with Mr Latimer, Mr Baldock and herself with a view to trying to resolve the differences. Mrs Triggs's response on 15 February thanked Ms Munn for the sick pay offer but complained that the employer appeared to have ignored the grievance raised in her letter of 20 December 2004 with regard to Mr Baldock. She said (in effect) that the proposed meeting offered no satisfactory solution and that she “… would find this extremely difficult as John Baldock has now placed me under his direct control and I find this intimidating.” She said she had therefore decided to terminate her contract of employment and was proposing to seek legal advice as to her remedies against the employer.
Mrs Triggs's letter of 15 February 2005 amounted to her acceptance of what the ET found to have been a breach by the employer of its implied duty of trust of confidence owed to her as an employee, such breach being of its nature a repudiatory breach of the employment contract. It was that acceptance that marked the termination of the contract by constructive dismissal. The effective date of termination of her employment for the purposes of section 97 of the Employment Rights Act 1996 (“the ERA”) was agreed to be 15 March 2005.
The statutory provisions
Section 94 of the ERA confers a right upon an employee not to be unfairly dismissed. By section 95 dismissal includes the case in which the employer terminates the employment contract with or without notice to the employee; and, more relevantly, the case in which “the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct”. The latter case is ordinarily referred to as constructive dismissal, which was the nature of Mrs Triggs's dismissal.
Employment tribunals have an exclusive jurisdiction to hear and adjudicate upon claims for unfair dismissal. No such claim can be brought before the ordinary civil courts, although claims for wrongful dismissal (dismissal in breach of the terms of the employment contract) can of course be so brought. A successful claim before a tribunal for unfair dismissal entitles the employee to a basic award and a compensatory award ( section 118 of the ERA). The former is a matter of arithmetical calculation. Subject to a statutory cap on the maximum award, the assessment of the latter is governed by section 123 of the ERA. Section 123(1) provides:
“Subject to the provisions of this section and sections 124, 124A and 126, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the...
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