This decision focused on the remedies hearing after the respondent had already been found liable for the unfair dismissal and disability discrimination of the claimant. The claimant had suffered from anxiety and fibromyalgia and her anxiety caused her to check her medical records repeatedly as well as those of her mother.   An investigation was commenced which caused further anxiety to the claimant and she pestered her line manager leading to her suspension.   She was then summarily dismissed on 23rd May 2017 which was over 18 months from the date of the last alleged offence.  At the liability hearing, the Tribunal found that the claimant’s conduct was not blameworthy, and that the dismissal was unfair.  It was further held that the dismissal and previous suspension were discriminatory on the ground of disability.  The claimant’s behaviour of checking the records and pestering the manager were directly related to the disability and the dismissal or suspension were not a proportionate means of achieving a legitimate aim.

In terms of the remedy hearing, there was an award given for the lack of notice pay and the basic and compensatory award for unfair dismissal in the normal manner. It is notable that on the point of mitigating one’s loss as is normal with unfair dismissal it was held that the ‘egg shell skull’ rule must be considered in that it would not be expected that someone with the claimant’s anxiety would be able to mitigate their loss.  The biggest issue for the remedy hearing was the pension loss which the claimant lost out on as a result of the dismissal.  This can be a complex affair based upon the particular facts of the claimant as well as the particular type of pension that they would have been able to avail of.  In this case, the liability was £96,700 net.

In terms of the disability discrimination there was a £27,423 award for injury to feelings with it being seen as the ‘bottom end of the top band in Vento’.  This was because of the impact it had on her life, the loss of confidence that she had suffered and overall effect on the person she had become. The fact that there was a pre-existing vulnerability led to the eggshell skull rule being used and the lack of maliciousness from the respondent did not mean there should be a reduction.   There was also a personal injury award of £3,000 considering the medical evidence demonstrating a recognised psychiatric injury. The fact the prognosis was regarded as good is something which meant that the personal injury award was more modest.

It must be noted that the total award was just shy of £270,000.  This was largely boosted by the fact that there was ‘grossing up’ to ensure that the claimant was not punished by being taxed.  The figure for the grossing up was £86,816.

Practical Lessons

This case demonstrates how something that is not malicious, seems rather ‘low-level’ and relates to a modestly paid employee (c. £18,000 p/a) can still lead to a huge pay out.  The factor here related to the pension pay out as well as the disability pay out where the eggshell skull rule was taken into account.  This means that employers must be cognisant of how their actions may affect individuals with pre-existing vulnerabilities. The issue of grossing up can also act as a way of kicking the respondent when they are already down so must also be considered.
https://www.gov.uk/employment-tribunal-decisions/miss-s-j-austin-v-the-leeds-teaching-hospitals-nhs-trust-1801339-2017