Osei-Adjei v RM Education Ltd

A claimant may recover loss flowing directly and naturally from disability discrimination, including psychiatric injury and, where proved, a labour-market handicap. Reasonable foreseeability is not an additional requirement.

However, an employee’s voluntary resignation may constitute a novus actus interveniens and end liability for subsequent loss where the resignation, rather than the unlawful act, caused the loss. This differs from an employer’s unfair dismissal, which an employer cannot invoke to reduce compensation for its own wrong.

Where unlawful discrimination materially contributes to psychiatric injury alongside other causes, compensation must reflect the employer’s relative contribution. The tribunal must assess and discount the effect of the other causes.

The claimant, who had dyslexia, succeeded before the Employment Tribunal only in a claim that the respondent had failed to make a reasonable adjustment by placing him on a performance improvement plan before a workplace assessment. His constructive dismissal claim failed.

At remedy, the tribunal awarded £4,000 for injury to feelings and £10,000 for psychiatric injury. It awarded no future earnings loss, finding that the claimant’s resignation had caused that loss. The claimant appealed that refusal. The respondent cross-appealed the psychiatric-injury award, contending that it failed to reflect other causes of the claimant’s depression.

The central issues were whether resignation broke the chain of causation and whether the psychiatric-injury award required apportionment.

1. The claimant’s appeal was dismissed. The Employment Tribunal was entitled to find that the claimant’s voluntary resignation broke the chain of causation for future earnings loss and any asserted labour-market handicap.

2. Prison Service v Beart did not establish that termination of employment can never be a new intervening act. Its effect was that an employer which unfairly dismisses an employee cannot rely on its own wrongful act to curtail compensation. By contrast, Ahsan v Labour Party established that a claimant’s voluntary departure may, in appropriate circumstances, break causation.

3. There was evidence that, when the claimant resigned, he was medically fit to return, his post remained open and the respondent was willing to make the relevant adjustments. The tribunal had also rejected constructive dismissal. It could therefore find that resignation, rather than discrimination, was the sole cause of reduced earnings after that date.

4. The respondent’s cross-appeal was allowed in part. The tribunal erred in finding that there were no additional causes of the claimant’s depression. The discriminatory act was a trigger, but the evidence showed substantial other contributing causes, including the claimant’s reactions to events not found unlawful and a later stressful work experience.

5. Applying the approach in Thaine v London School of Economics, compensation was limited to the respondent’s contribution. The EAT reassessed general damages at £5,000 and awarded 40 per cent, namely £2,000, with appropriate interest.

The EAT also observed, without reopening liability, that a workplace assessment is not itself ordinarily a reasonable adjustment because it does not of itself enable an employee to attend or return to work.

• Employment Appeal Tribunal: claimant’s appeal against the remedy decision dismissed; respondent’s cross-appeal allowed in part.
• Employment Tribunal at Reading: liability judgment sent on 24 October 2011. The claimant succeeded only on failure to make a reasonable adjustment. At remedy, the tribunal awarded £4,000 for injury to feelings and £10,000 for psychiatric injury, but no future earnings loss. A review application was dismissed on 14 March 2012.