Dr. Bernadette McInerney v Nottinghamshire Healthcare NHS Foundation Trust

Where compensation is claimed for discrimination, the tribunal must distinguish between an established loss caused by the unlawful act and uncertainty about future events. A percentage-chance assessment is generally required for the latter, but it is unnecessary where the tribunal finds that the claimant has not proved that the alleged loss flowed from the victimisation.

A tribunal may reject uncorroborated evidence of a disabling loss of confidence and may take account of the absence of adequate medical evidence. It may select a retirement age which fairly reflects the possibility of earlier or later retirement. Evidence relevant to attempts to obtain work may support a finding that no loss was suffered; that is distinct from finding a failure to mitigate.

The claimant, a consultant forensic psychiatrist, succeeded before the Employment Tribunal in claims for constructive unfair dismissal and victimisation. The victimisation consisted of the respondent’s refusal to consider her for a part-time role in its Forensic Gender Clinic.

At remedy, the tribunal awarded compensation for injury to feelings, aggravated damages and loss of earnings associated with the clinic role. It rejected a much larger claim for loss of medico-legal earnings. It found that the claimant had not established that victimisation caused a loss of confidence preventing that work, and calculated future loss by reference to retirement at 67 rather than 75.

The claimant appealed the refusal of medico-legal losses, the retirement-age assessment, the application of the eggshell-skull principle, and the approach to mitigation.

1. Appeal dismissed. The Employment Tribunal made a permissible factual finding that the claimant had not established a loss of confidence caused by victimisation which prevented her from undertaking medico-legal work. Its conclusion was supported by the absence of significant independent medical evidence, the lack of corroboration for alleged reputational damage, and evidence suggesting that such work remained available.
2. The tribunal was determining whether the claimed loss had been proved to flow from the victimisation. It was not assessing a future contingency requiring a percentage-chance calculation. Its refusal to award medico-legal losses therefore involved no error of law.
3. The tribunal was entitled to reject the claimant’s unsupported assertion that she would work until 75. Its selection of 67, based on unchallenged retirement data for comparable consultants, was an evaluative assessment which allowed in substance for the prospect of earlier or later retirement. Its reasons were adequate.
4. The eggshell-skull principle did not assist the claimant. Nothing showed that the tribunal failed to take her as it found her; rather, it rejected her evidence that victimisation had caused the asserted fundamental loss of confidence.
5. The tribunal did not reverse the burden on mitigation. Its observation that the claimant made limited efforts to obtain medico-legal work was a subsidiary basis for finding that she did not wish to undertake it, rather than a finding that she had failed to mitigate an established loss.

• Employment Appeal Tribunal: appeal dismissed: [2024] EAT 158.
• Employment Tribunal: liability judgment sent on 23 June 2021 upheld complaints of constructive unfair dismissal and victimisation. A constructive-dismissal remedy judgment sent on 30 November 2022 recorded agreed compensation. A victimisation remedy judgment dated 26 January 2023 and sent on 15 February 2023 awarded compensation but rejected the disputed medico-legal losses.