Beart v HM Prison Service

A defendant cannot rely on its own wrongful act, including an unfair dismissal, to break the chain of causation from an earlier act of disability discrimination. The later wrong does not extinguish loss caused by the earlier wrong or import the statutory cap applicable to unfair dismissal into the separate discrimination claim. A justified dismissal may require a different comparator for future loss, but it does not automatically erase loss caused by the discrimination. A mitigation defence must be pleaded and proved by the wrongdoer.

An employee who became depressed after workplace events was found by an Employment Tribunal to have suffered disability discrimination when her employer failed to relocate her, and unfair dismissal following disciplinary proceedings concerning alleged work at a clothing shop. The Tribunal awarded compensation, including future loss of earnings. The Employment Appeal Tribunal rejected the employer’s argument that the dismissal ended liability for losses attributable to discrimination and that the unfair-dismissal cap applied. Liability had previously been upheld by the Court of Appeal in [2003] EWCA Civ 119. The present appeal concerned damages, particularly whether the dismissal broke causation or confined recovery to the unfair-dismissal regime.

1. Disposition. The appeal was dismissed unanimously. Wall LJ agreed with Rix LJ’s reasoning, and Hooper LJ agreed.
2. The Court applied the principle in Coudert Brothers v Normans Bay Limited [2004] EWCA Civ 215: a defendant cannot rely on a wrong committed by itself to break the chain of causation or reduce damages flowing from an earlier breach of duty. The principle was one of broad application and could not be avoided by arguing that the claimant, rather than the defendant, had first raised the dismissal in the litigation.
3. An unfair dismissal was itself a further wrong by the Prison Service. It was not a new intervening act capable of extinguishing the consequences of the earlier discrimination. The disability discrimination claim and the unfair-dismissal claim were distinct causes of action, and the statutory cap applicable to unfair dismissal did not limit damages caused by the discrimination.
4. It was unnecessary to decide conclusively whether Mrs Beart would have been dismissed if she had been relocated. In any event, the dismissal was not justified: the alleged misconduct was not proved, the decision-maker’s belief was unreasonable, and dismissal was outside the range of reasonable responses. Even a justified dismissal would have changed the comparator for future loss rather than necessarily eliminating loss caused by the earlier discrimination.
5. The Tribunal’s findings that the discrimination materially contributed to continuing psychiatric injury and impaired earning capacity were not open to a fresh challenge as perverse. The later argument based on the episodic nature of the illness was a new contention and had not been raised in the grounds of appeal. Any allegation of failure to mitigate was likewise unpleaded and unproved; the burden rested on the wrongdoer.
6. The Tribunal’s clarification was also consistent with the protection afforded by the Disability Discrimination Act: an employer could not escape or reduce liability for discrimination by relying on its own subsequent unlawful conduct.

• Court of Appeal (Civil Division): dismissed the present appeal on damages, [2005] EWCA Civ 467.
• Employment Appeal Tribunal: rejected the Prison Service’s appeal on the alleged effect of the dismissal on discrimination damages on 14 September 2004.
• Court of Appeal (Civil Division): previously upheld the liability findings on disability discrimination and unfair dismissal, [2003] EWCA Civ 119.
• Employment Tribunal: found liability for disability discrimination and unfair dismissal, later awarding compensation and clarifying its findings on continuing employment and loss.