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Discriminatory comment proves costly

The Court of Appeal has given important guidance on how to assess compensation for psychiatric injury in cases where a claimant’s injury has multiple causes.

Where multiple factors, one of which is an employer’s conduct, cause psychiatric harm to an employee, should liability be apportioned between the different factors to reduce compensation?

No, says the Court of Appeal.

Konczak v BAE Systems (Operations) Ltd

Ms Konczak was employed as a secretary by BAE Systems (Operations) Ltd (“BAE”) from 1998 until 2007. She was part of the liaison team for the detachment of officers from the Royal Saudi Air Force. Although she initially got on with the officers, a change in personnel saw a gradual breakdown in the relationships and Ms Konczak alleges that she was subjected to up to fifteen occurrences of bullying and harassment, in particular two episodes of sexual harassment by two members of the team.

She was moved from the base at Preston to Warton to join the commercial team and became increasingly unhappy, believing she had no proper role at Warton.  She applied to be relocated back to the Preston base. Her line manager, Mr Dent, said that she could return to work for the same team at Preston, although not in her previous role. Ms Konczak was extremely unhappy at this proposal as this would mean working with the officers who had previously harassed her. She felt like her objections were not being taken seriously and at a meeting with her line manager, broke down in tears.

Shortly after this meeting, Mr Dent visited Ms Konczak in her office and stated that “women take things more emotionally than men, while men tend to forget things and move on”. This was the final straw for Ms Konczak. Immediately following Mr Dent’s comment, she was signed off with work related stress and did not return. She was eventually dismissed by BAE but the reason for dismissal was not clearly expressed at the time.

Ms Konczak brought various complaints for sex discrimination, victimisation, failure to make reasonable adjustments and unfair dismissal, disability and breach of contract.

The proceedings have had a long and complicated history. There have been four hearings in the Employment Tribunal with each of those hearings generating an appeal to the Employment Appeal Tribunal. In its most recent decision, the Employment Tribunal upheld that Mr Dent’s comment was an act of sex discrimination. It also upheld several other complaints including a failure to make reasonable adjustments, disability discrimination, victimisation and unfair dismissal. It concluded that the Mr Dent’s comment had caused Ms Konczak’s illness and that BAE were liable for all losses in the sum of approximately £360,000.

BAE appealed, arguing that it should not be liable for the total figure as it was not legally responsible for the other factors that had contributed to Ms Konczak’s illness. BAE argued that the correct approach was for the tribunal to apportion liability between the different factors and find BAE only to be liable to those incidents attributable to the company.

Decision

The Court of Appeal found that where there are numerous causes of an injury, the Tribunal should make reasonable attempts to apportion liability. However, apportionment is only appropriate if the injury is ‘divisible’, i.e. where the Tribunal can identify that a particular part of the suffering is due to the employer’s treatment.  An injury may be divisible if, for example, the employer’s wrongdoing exacerbated a pre-existing illness.

In this case, Mr Dent’s comment was the final straw for Ms Konczak and caused the mental illness, meaning that even though it may have been caused by multiple factors, the illness was not divisible. The Court of Appeal commented that “the basic rule is that a wrongdoer must take his victim as he finds him, eggshell personality and all.”

Compensation can also be reduced to reflect the chance that the claimant would have suffered the injury even in the absence of the employer’s unlawful conduct where a claimant has a pre-existing vulnerability or disorder. The Court of Appeal set out that this argument was not available to BAE due to the procedural history of the case.

The Court of Appeal therefore rejected BAE’s appeal.

Comment

This case serves as a warning to employers that they could face expensive awards if their conduct causes further psychiatric harm to an employee, even where the harm is caused by other factors too.  In particular, if an employer causes psychiatric injury to someone who is vulnerable following previous incidents or as a result of other factors, the employer will be on the hook for any compensation flowing from the injury.

Employers are under a duty on employers to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all their employees.  In a stress context, employers are under a duty to undertake risk assessments and manage activities to reduce the incidence of stress at work.  Conditions such as stress can also amount to a disability for the purposes of the Equality Act 2010, giving rise to protection under the Act and (amongst other things) the duty to make reasonable adjustments.

If you have any queries relating to stress at work or discrimination please do not hesitate to contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.

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