First Greater Western Ltd v Waiyego

Compensation for discrimination may, in principle, be reduced for contributory negligence under the Law Reform (Contributory Negligence) Act 1945, but such reductions will rarely be justified. The concept of fault is difficult to apply to discrimination, and an allegation of contributory negligence may impair the essence of the right not to be discriminated against. Conduct said to have contributed to loss will generally be better analysed as failure to mitigate loss.

An employment tribunal has a broad evaluative judgment when assessing psychiatric injury and injury to feelings. It need not recite every legal consideration, provided its reasoning shows that causation, divisibility, totality and double recovery have been addressed. A financial penalty under section 12A of the Employment Tribunals Act 1996 is discretionary, not mandatory.

The Respondents appealed against a remedies decision of the Employment Tribunal following findings that the First Respondent had failed to make reasonable adjustments by delaying cognitive behavioural therapy and that both Respondents had treated the Claimant unfavourably because of something arising from disability.

The Tribunal awarded damages for psychiatric injury, injury to feelings and loss of earnings. It rejected arguments for reductions based on mitigation or contributory negligence, aggravated damages and a financial penalty. The Respondents challenged the quantum and alleged failures concerning causation, divisibility, totality and double counting. The Claimant cross-appealed against the refusal of aggravated damages and a penalty.

1. Appeal dismissed. The Employment Tribunal’s awards stood. The Tribunal had not erred by failing to make a contributory-negligence deduction. Although section 1(1) of the Law Reform (Contributory Negligence) Act 1945 could apply to some discrimination claims, tribunals should be very wary of doing so. Discrimination may occur without fault in the ordinary sense, and contributory negligence is conceptually perilous in this context. A failure connected with medical treatment will normally be better considered as mitigation of loss.
2. The dictum in Way v Crouch, [2005] ICR 1362, that compensation in discrimination cases is subject to the 1945 Act, was too broad. The essence of the statutory right could be impaired by an over-wide application of the Act.
3. The Tribunal’s causation findings were rationally supported by the joint expert evidence. The Respondent had to take the Claimant as found, including her pre-existing vulnerability. The Tribunal was entitled to find that the delayed CBT caused a decline in her mental health and that the harm could not be separated further on a rational basis.
4. The awards for psychiatric injury and injury to feelings were within the Tribunal’s evaluative discretion. The Tribunal had considered the relevant evidence and was not required expressly to mention burden of proof, totality or the exclusion of double recovery where its reasoning showed that those matters had been addressed.
5. Cross-appeal dismissed. The penalty power under section 12A(1) of the Employment Tribunals Act 1996 was discretionary. The Tribunal was entitled to find no aggravating features. It was also entitled to refuse aggravated damages, consistently with the cautious approach in Commissioner of Police for the Metropolis v Shaw, [2012] ICR 464.

• Employment Tribunal: following a liability judgment dated 3 June 2016, the Tribunal awarded compensation at a remedies hearing on 31 July and 1 August 2017. It refused contributory-negligence or mitigation reductions, aggravated damages and a financial penalty.
• Employment Appeal Tribunal: the Respondents’ appeal and the Claimant’s cross-appeal were dismissed. The Tribunal’s decision was upheld in its entirety.