Court of Appeal Guidance on Discrimination Awards Where Psychiatric Injury Caused by Multiple Factors
Where an employee’s psychiatric injury is caused by multiple factors, liability can only be apportioned if the tribunal is able to identify that a particular part of the suffering is due to the employer’s unlawful act.
Where an employee’s psychiatric injury is caused by multiple factors, some of which the employer is responsible for and others which it is not, liability can only be apportioned (and compensation reduced accordingly) if the injury is divisible i.e. if the tribunal is able to identify that a particular part of the suffering is due to the employer’s unlawful act. Whether a psychiatric illness is divisible is a question of fact in each case. In this case, where a discriminatory comment was the final straw which pushed the employee over the edge into mental illness, the employment tribunal had been entitled to find that, although the injury had been caused by multiple factors, it was not divisible. The employer was therefore liable to pay the full compensation.
In BAE Systems (Operations) Limited v Konczak, Ms Konczak was moved from the Liaison team to the Commercial team at a different site, after alleging that colleagues had sexually harassed her. Just over a year later, in April 2006, her line manager, Mr Dent, suggested that she should move back to the Liaison team. She was unhappy at this proposal because it would involve her working with the colleagues she said had sexually harassed her. She believed that her objections were not being taken seriously and broke down in tears. After the meeting, Mr Dent went to see her and in what appeared to be an attempt to express sympathy, said words to the effect that women take things more emotionally than men, while men tend to forget things and move on. Ms Konczak went sick with work-related stress and never returned to work. She was dismissed on 23 July 2007.
She claimed that Mr Dent’s comment was discriminatory on grounds of sex. She also claimed that her dismissal was on grounds of disability, constituted victimisation on account of her sex discrimination complaint and was unfair. The employment tribunal ruled that Mr Dent’s comment was an act of sex discrimination and upheld her other claims, awarding compensation of around £360,000.
The case reached the Court of Appeal. BAE argued that it should not be liable to pay such a large sum as there were 15 or so other work-related events which had contributed to Ms Konzack’s illness, for which the employment tribunal had found BAE was not legally liable. Liability should therefore be apportioned and compensation reduced accordingly.
The Court of Appeal rejected BAE’s appeal. Where psychiatric injury is alleged to have been caused by an employer's wrongdoing, the employment tribunal should examine whether there is a rational basis on which the harm suffered can be apportioned between a part caused by the employer's wrongdoing and a part which is not. In cases where an injury has multiple causes, apportionment is only appropriate if the injury suffered is “divisible” i.e. if the tribunal can identify, however broadly, that a particular part of the suffering is due to the employer’s unlawful act. For example, an injury may be divisible if the employer’s wrongdoing exacerbated or accelerated a pre-existing illness, in which case compensation should reflect the extent of the aggravation. Whether a psychiatric illness is divisible is a question of fact in each case. In Ms Konczak’s case, where Mr Dent’s comment was the final straw which pushed her over the edge into mental illness, the employment tribunal had been entitled to find that, although the injury had been caused by multiple factors, it was not divisible.
This case gives important guidance on how to assess compensation in cases where an employer’s conduct, in conjunction with other factors, causes an employee psychiatric harm. Whilst employment tribunals should look to apportion the injury, apportionment is only appropriate if it is possible to identify that a particular part of the employee’s suffering has been caused by the employer’s unlawful act. Otherwise, the employer will be liable in full.
Nevertheless, where an employee has a pre-existing vulnerability or disorder, compensation may be reduced to reflect the chance that the employee would have suffered the injury, even in the absence of the employer’s unlawful conduct. This is an argument that was not run by BAE but could be available to other employers facing similar claims.
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