Unfair Dismissal - Compensatory Awards and Sickness Absence
by Liam
In Adey-Jones v O’Dowd the EAT have considered how a compensatory award should be calculated in circumstances where, following an unfair dismissal, the Claimant is unable to work for a new employer (or set up business on his own account) because of sickness.
The degree of loss from periods of inability to work due to sickness that is recoverable in an unfair dismissal claim varies depending on the cause of the sickness:
- If the sickness was caused entirely by the unfair dismissal, then (all other things being equal) the full loss while unable to work in new employment is recoverable.
- If the sickness was caused partly by the unfair dismissal and partly by other factors then the tribunal should take a “percentage approach” to recoverability of loss and determine what degree of causal connection exists between the unfair dismissal and the sickness as opposed to the other factors.
- If the sickness has nothing to do with the unfair dismissal then the employer gets out of jail free - if the employee would have been unable to work in any event (through no fault of the employer) then the loss of earnings for the period of illness are not recoverable in an unfair dismissal claim as the employee has suffered no losses as a result of the unfair dismissal.
If the sickness was caused by events in the course of the employee’s employment (other than dismissal), the losses will not be recoverable in an unfair dismissal claim, but may be recoverable as a breach of contract claim.
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