The Court of Appeal has rejected a previous judgment which suggested that damages for psychiatric injury in the Employment Tribunal are always indivisible.
In BAE Systems (Operations) Ltd v Konczak the claimant worked as a liaison with the Saudi Arabian Air Force but was relocated after claiming she had been bullied and harassed. Unhappy at her new site, her line manager suggested she returned to her previous team with the colleagues she said had sexually harassed her. Her line manager said she took things too emotionally compared to males as males tended to forget things and move on. The Tribunal found this comment to amount to sex discrimination and was the final straw for the claimant.
The claimant developed a mental illness as a result of the comment and was awarded £318,629 in damages. BAE appealed on the grounds that the claimant had a history at stress and problems at work before the comment was made. BAE argued that if ill-health is caused by a combination of factors, of which the employer is only liable for some, a discount should be made to reflect the apportionment of that responsibility.
The Court of Appeal agreed that damages could be apportioned but this was not a case where it was appropriate to do so. The damages in this case were indivisible and accordingly, BAE was liable to pay the entire amount.
This case is a helpful clarification of the law and may assist employers facing damages for psychiatric injury which they are only partly to blame for. Medical evidence will be key in helping tribunals to apportion damages.