Facts
Between 1998 and 2007, the Claimant (“C”) was employed as a secretary at BAE Systems (Operations) Limited (“R”). In April 2006, C attended a particularly difficult meeting with her line manager and a colleague in which C ultimately broke down in tears. Shortly after the meeting, C’s line manager suggested that women take things more emotionally than men whereas men tend to forget things and move on (the “Dent Comment”). Thereafter, C did not return to work. She was signed off by her GP as being unfit to work due to work-related stress and was eventually dismissed by R in July 2007.
C subsequently brought a number of tribunal claims, including a sex discrimination claim relating to the Dent Comment which was upheld by the Tribunal. After a complicated set of proceedings, the EAT held that R was liable to pay C compensation in the sum of £360,178.60.
R appealed on the basis that the award is excessive and that the harm flowing from R’s wrongdoing should be apportioned between the impact of the Dent Comment and various different factors preceding the Dent Comment, including a history of problems at work for which R was not liable. On remission, the ET held that it could not be so divided and the EAT dismissed R’s appeal. R then appealed to the Court of Appeal.
Judgment
The Court of Appeal dismissed the appeal. It held that where there are multiple causes of psychiatric injury suffered by C, then the tribunal should make a sensible attempt to apportion liability accordingly, provided that the harm is divisible. If it is divisible (for example, in cases of pre-existing illness where the employer is only responsible for aggravating the illness), the tribunal should ascertain a rational basis on which the harm can be apportioned between the suffering caused by the employer’s wrongdoing and the suffering that is not attributable to the employer’s wrongdoing. In C’s case, the Tribunal had accepted the evidence of one of the medical experts that the Dent Comment had been the final straw which had pushed C, who did not suffer from a diagnosable mental illness at the time, into developing a diagnosable mental illness. On that basis, the Tribunal was entitled to find that C’s harm was not divisible and therefore that the apportionment point should be rejected.
The CA further disagreed that a specific discount should be made because C had a pre-existing vulnerability and she would have developed a stress-related disorder in any event. The argument had not been raised before the Tribunal and, given the complicated procedural history, the CA did not allow R to re-formulate their case. Ultimately, the Court of Appeal determined that £360,000 was “generous… but it was not perverse.”
BAE Systems (Operations) Ltd v Konczak [2017] EWCA Civ 1188
