Hampshire County Council v Wyatt

A claimant may recover compensation for physical or psychiatric injury caused or materially contributed to by unlawful discrimination. Where there are competing causes, the tribunal must address whether the harm is divisible. A respondent whose unlawful act is a proximate cause of indivisible harm is liable for the whole harm.

Medical evidence is usually advisable in psychiatric-injury cases, particularly on causation, divisibility and prognosis. It is not, however, an absolute legal precondition to an award. The sufficiency of evidence depends on the facts. In unfair-dismissal compensation, a tribunal may assess future employment prospects using the available evidence, common sense and a realistic appraisal of contingencies.

The Employment Tribunal held that the claimant, a long-serving carer, had been unfairly dismissed and subjected to disability discrimination. It found that her suspension was not itself unlawful, but that the manner of the suspension meeting and subsequent treatment included unlawful failures to make reasonable adjustments, discriminatory dismissal and victimisation.

At remedy, the Tribunal awarded £10,000 for psychiatric injury and compensation for future earnings loss following unfair dismissal. The employer appealed, contending that medical expert evidence was legally necessary for both awards and that the personal-injury award was excessive because the depression had been triggered by the lawful suspension.

The central issues were whether the evidence established causation and liability for the psychiatric injury, and whether medical evidence was indispensable to the assessment of personal injury and future loss.

1. Appeal dismissed. There was no rule of law requiring expert medical evidence before a tribunal may award compensation for psychiatric injury caused by discrimination. Such evidence will commonly assist with causation, divisibility, treatment and prognosis, and its absence may result in a lower award or no award. The evidence required depends on the facts of the individual case.

2. A claimant must prove, on the balance of probabilities, that the unlawful discriminatory act or acts caused or materially contributed to the physical or psychological injury. If competing causes are established, the tribunal must consider whether the resulting harm is divisible. Where harm is indivisible, a respondent whose unlawful conduct was a proximate cause must compensate for the whole injury. Where it is truly divisible, compensation must be confined to the harm attributable to the respondent.

3. The Tribunal was entitled to find that the unlawful manner of the suspension meeting and the later unlawful treatment caused or materially contributed to the claimant’s depressive illness. Although suspension itself was lawful, the suspension and its unlawful communication were inextricably linked. The employer had neither advanced a divisibility case nor sought apportionment. Occupational Health reports and lay evidence supported the finding that the illness was continuing and indivisible.

4. The Tribunal made no error of principle in assessing the psychiatric injury as moderately severe or in awarding £10,000. The Judicial College guidance was not determinative. The Tribunal had considered the separate injury-to-feelings award and the risk of overlap, and the combined general-damages award was within the permissible range.

5. Nor is medical evidence a legal prerequisite to an assessment of future loss in unfair-dismissal compensation. A tribunal must make a just and equitable, necessarily speculative assessment of the realistic prospects of obtaining suitable alternative employment on all the available evidence. The nine-month future-loss assessment disclosed no error of law.

• Employment Appeal Tribunal: appeal dismissed.

• Southampton Employment Tribunal: held that the claimant had been unfairly dismissed and unlawfully discriminated against; at remedy it awarded compensation for personal injury and future loss of earnings. The Remedy Judgment’s reasons were promulgated on 27 July 2015.