BAE Systems (Operations) Ltd v Konczak

On a remission, the tribunal must comply with the appellate order according to its terms. A direction permitting consideration of evidence heard and facts found by the remitted tribunal, together with facts found by an earlier tribunal, does not permit reconsideration of evidence heard by that earlier tribunal but not recorded in its findings.

Whether psychiatric injury is divisible is a question of fact. It is indivisible where there is no rational basis for an objective apportionment of causative responsibility. Mitigation must be assessed in its clinical and factual context, rather than by treating a refusal of treatment in isolation.

The claimant succeeded in complaints arising from sex discrimination, disability discrimination, victimisation and unfair dismissal. Following earlier appeals and remittals on remedy, the Employment Tribunal held that her psychiatric injury at 26 April 2006 was indivisible and that her failure to mitigate loss by commencing medication arose in July 2010.

The employer appealed against the second remitted remedy decision. It contended that the tribunal should have considered a note of evidence from an earlier remedy hearing, and that the injury was divisible. It also challenged the tribunal's explanation of the mitigation date.

1. Appeal dismissed. The Employment Tribunal permissibly decided both issues remitted to it, and no error of law was shown.
2. The remission order drew a deliberate distinction between the evidence and findings of the Sherratt Employment Tribunal, and the findings of the earlier Cook Employment Tribunal. The latter tribunal's findings were a matter of record, but the remitted tribunal could not revisit its unrecorded evidence or assess its surrounding context. It was therefore correct to exclude the note of Dr Craig's cross-examination from the earlier hearing.
3. The tribunal correctly applied the test in Rahman v Arearose Limited [2001] QB 351. A single injury is indivisible where there is no rational basis for objectively apportioning causal responsibility. On the material properly before it, including the medical evidence that apportionment would be no more than a guess and the finding that the unlawful comment triggered the claimant's condition, the conclusion that the injury was indivisible was legally open to the tribunal.
4. On mitigation, the tribunal gave sufficient reasons by adopting the claimant's written analysis of the treatment chronology. The relevant failure was not simply a refusal to take medication. It arose when continuing to await the outcome of litigation was no longer appropriate and medication should have begun. The parties knew why July 2010 had been selected.

• Employment Appeal Tribunal: This appeal dismissed the employer's challenge to the second remitted remedy decision.
• Employment Appeal Tribunal (Hand EAT): Earlier appeals from the first Sherratt remedy decision were allowed to the extent set out in an order dated 24 January 2014, with issues of causation and mitigation remitted.
• Employment Appeal Tribunal (Clark EAT): The claimant's appeal against the earlier remedy limitation was allowed and remedy remitted to a fresh Employment Tribunal; the appeal concerning legal privilege was dismissed.
• Employment Tribunal: The second Sherratt remedy judgment, dated 30 October 2014, found the psychiatric injury indivisible and retained July 2010 as the mitigation date.