Olayemi v Athena Medical Centre

Where unlawful conduct is a material cause of psychiatric injury, the wrongdoer must take the claimant as found. Mere vulnerability or susceptibility does not justify reducing compensation for the injury, although allowance may be made for the chance that a comparable trigger would otherwise have caused illness.

Where another cause materially contributes, compensation may be apportioned only if the resulting harm is truly divisible. The tribunal must identify both whether the injury is divisible and how it should be divided. An across-the-board percentage reduction is not a general rule and must be justified by the particular losses and evidence.

Housing benefit is not deducted from compensation for loss of earnings where the benefits legislation permits retrospective reassessment and recovery. A 10 per cent Simmons v Castle uplift was permissible in discrimination compensation.

The Employment Tribunal awarded Dr Olayemi compensation for sex discrimination, unfair dismissal and breach of contract after finding that she had been subjected to a campaign of harassment and had developed PTSD and depression.

It reduced compensation for psychiatric injury, past loss and future loss by 12.5 per cent because of an earlier episode of PTSD. It also deducted housing benefit from loss of earnings and awarded a cardiologist’s fee. The Respondents cross-appealed against a 10 per cent uplift associated with Simmons v Castle.

The appeal concerned causation and divisibility of psychiatric loss, the treatment of housing benefit, the evidential basis for the cardiologist’s fee, and the statutory basis for the uplift.

1. Psychiatric injury. The Respondent’s wrongdoing was plainly a material cause of the Claimant’s illness. The earlier PTSD evidence established, at most, vulnerability or predisposition unless the Tribunal could explain why it constituted an independent material cause. Vulnerability does not permit the wrongdoer to avoid responsibility for the resulting psychiatric condition. The Tribunal may, however, allow for the chance that the condition would have arisen from another comparable trigger.
2. If another cause materially contributed, the Tribunal had to decide whether the resulting harm was truly divisible and, if so, identify the part attributable to each cause. Divisibility is a question of fact. The Tribunal had to consider what the earlier episode caused and what the Respondent’s conduct caused. A 12.5 per cent reduction across all losses was unjustified without that analysis, particularly where individual losses were not susceptible to percentage division.
3. The causation and apportionment issue was remitted to the same Employment Tribunal. It was generally to use the existing evidence, and should exercise caution before seeking further medical evidence. The likelihood of a future harassment or similar trigger was not itself a medical question.
4. Housing benefit. The Equality Act 2010 required tortious compensation. Although the first reason in Savage v Saxena could not survive Clenshaw v Tanner, its independent claw-back reasoning remained sound. Housing benefit legislation treated compensation for loss of earnings as earnings and permitted retrospective reassessment and recovery. Housing benefit therefore should not have been deducted. The award was increased by £52,337 plus appropriate grossing-up, with liberty to apply on the grossing-up figure.
5. The cardiologist’s fee ground raised no question of law and was dismissed.
6. The cross-appeal against the 10 per cent uplift was dismissed. Beckford v London Borough of Southwark was followed. The statutory direction to award compensation corresponding to county court compensation, together with the partial alignment of costs regimes after the Jackson reforms, justified the uplift.

• Employment Tribunal, East London: by judgments dated 25 October 2010 and 30 December 2014, upheld the substantive claims and awarded compensation of £752,333, including the deductions and uplift challenged on appeal.
• Employment Appeal Tribunal: allowed the appeal on the PTSD deduction and housing benefit issues, dismissed the cardiologist’s fee ground, dismissed the cross-appeal on the uplift, and remitted the causation and divisibility issue to the same Employment Tribunal.