(Disability Discrimination: Compensation) In a case where the Employment Tribunal found that the Claimant’s suspension was not an unlawful act but was the most proximate cause of her depression and triggered that depression, the Respondent appealed against an award for personal injury on the basis that the Employment Tribunal was wrong to make such an award in the absence of expert medical evidence, which was necessary to establish both causation and quantum of this claim which are difficult issues to disentangle. The Respondent argued that in a low-value case, cost and proportionality issues may drive parties and tribunals to deal with such issues without medical evidence but in all other cases medical evidence must be obtained before such an award can be made. A similar point was argued in relation to pecuniary loss awards for unfair dismissal.
The Respondent also contended that the Employment Tribunal’s starting point for the personal injury award was inflated and erroneously characterised the psychiatric injury as ‘moderately severe’ (with a bracket of andpound;15,000-andpound;44,000) within the terms of the Judicial College Guidelines, 12th edition, rather than as ‘moderate’ (with a bracket of andpound;4,700-andpound;15,400). This led to an award that overlapped with the injury to feelings award and was manifestly excessive.
These arguments were not accepted. Although it is advisable for claimants to obtain medical evidence (especially in cases involving psychiatric injury which can give rise to difficult questions of causation and quantification) and failure to produce medical evidence risks a lower award than might otherwise be made, or no award being made at all, the Employment Appeal Tribunal rejected the argument that a personal injury award cannot be made in the absence of expert medical evidence in every case bar those of low-value. There is no such principle of law. The same is true of pecuniary loss awards in unfair dismissal cases.
In this case in any event, although the Employment Tribunal found that suspension which was not unlawful triggered the depression, it also found that the suspension meeting was itself an act of unlawful discrimination because of the manner in which the suspension was communicated. These two events are inextricably linked. Had the meeting been handled lawfully, it may well be that the suspension itself would not have triggered the injury. In those circumstances, and given that the Respondent did not advance any argument that the depression was divisible as between lawful and non-lawful causes, or contend for an apportionment or a percentage reduction on that basis, the Employment Tribunal was entitled to find that the serious instances of unlawful action over a considerable period of time had a serious long-lasting impact on the Claimant and, in other words, caused or materially contributed to her depression so that the Respondent was liable for the full extent of it. There was ample evidence to support that conclusion in the Occupational Health reports and the evidence of the Claimant and her witness.
The Employment Appeal Tribunal could detect no error of principle or perversity in either award, and the appeal accordingly failed.
Simler DBE P J
[2016] UKEAT 0013 – 16 – 1310
Bailii
England and Wales
Employment
Updated: 26 January 2022; Ref: scu.572018