Compensation claims; calculating the loss

After an altercation at work the employee went off sick with stress, and was dismissed. On a finding of unfair dismissal, the employers argued that there should be no award for loss of earnings because he had been ill in any event, and so would have lost earnings anyway (especially as the firm had no sick pay scheme). The tribunal has found that they could not decide either way on the likelihood of this having been the case, and gave the benefit of the doubt to the employee. In attacking this, the employers had relied on Simrad Ltd. v Scott [1997] IRLR 147, where the Scottish EAT had stressed the importance of the applicant proving causation in the usual way (“causa causans“, not just “causa sine qua non“), but in this case the Scottish EAT (under the same judge) disproved that argument because Simrad had been criticised by the Court of Session in the important decision in Leonard v Strathclyde Buses Ltd. [1998] IRLR 693, where it was held that a broad, common-sense tests should be applied to what damage flowed from the unfair dismissal, not tied in to common law test of forseeability or remoteness.

“Harvey on Industrial Relations”