In the case of Mr Wood – v – Mitchell SA Limited the Claimant was diagnosed with hepatitis C in the middle of 2006. By October he was struggling with his job as driver/salesman. He was signed off work for two weeks on 17 November 2006 and during this period the Respondent became concerned with the Claimant’s ability to undertake his role.

The Respondent requested confirmation from the Claimant’s GP that he was fit to drive. However, the Claimant’s GP refused to provide such information and felt they should instruct a doctor privately. The Respondent refused to do this and insisted that the Claimant obtain confirmation of his ability to drive. The Claimant was subsequently dismissed with effect from 15 December 2006.

Following his dismissal, but prior to his appeal meeting, the Claimant obtained a letter from his consultant confirming that his condition and his treatment should not stop him from driving. The Respondent decided this evidence was insufficient as it did not confirm that he could drive a commercial vehicle.

The EAT held that it is a question for the Tribunal to consider the loss sustained by the Claimant as a consequence of his dismissal. The Tribunal had awarded the Claimant what he would have earnt up until he became unfit for work by reason of his psychiatric problems due the breakdown of his marriage.

However the EAT held this was too narrow. The Tribunal ought not to have treated the supervening psychiatric illness as a cut off point. The Tribunal ought to have considered the period after the Claimant became unfit for work. The Tribunal ought to have considered whether the Claimant would have received any pay or benefit during this period, for how long he would have been employed, and whether he would have been able to return to work during this period. The matter was referred back to the Tribunal.