Mrs Konczak was employed as a secretary until her dismissal in 2007. She had experienced a long history of stress and problems in the workplace which eventually led to a mental breakdown. One particular incident in April 2006 which involved a sexist comment from her line manager was described as the ‘final straw’ and she did not return to work due to work-related stress.

The main argument was the extent to which the Respondent was liable for the breakdown as the ET had previously held that the manager’s comment had caused the illness and that BAE was liable for all consequent losses totalling £360,000.

BAE contended on appeal that it should not be held liable for such an amount, especially considering various other factors, for which it was not liable, had contributed to the employee’s illness. The Court of Appeal identified that a court must make a ‘sensible attempt’ to apportion liability but noted that this can only be done when the injury is ‘divisible’. In other words, a tribunal can identify, however broadly, a particular part of the illness/suffering which is due to the wrong. The Court of Appeal was satisfied that the medical evidence demonstrated that it was only after the comments in April 2006 that the employee was pushed over the edge into a diagnosable mental illness. The injury was not considered divisible and the appeal was dismissed.

Practical Lessons

It is interesting to note that the Court of Appeal accepted that an injury may be considered divisible if, for example, the employer’s wrongdoing accelerated or exacerbated a pre-existing illness. Whether an injury is in fact divisible is a question of fact depending on the case. But employers should be aware that in cases where a pre-existing disorder/illness exists, the compensation award may be reduced to reflect the chance that the employee would have gone on to have suffered from the illness in any case, notwithstanding the employer’s unlawful conduct.

Whilst the Court of Appeal dismissed the appeal, it does seem clear that tribunals must try and find a rational basis for distinguishing the between a part of the illness which the employer has caused and that which it has not. Liability for ‘broken leg’ is usually quite obviously indivisible between two potential causes, the Court noted, but cases of psychiatric harm are much more difficult to decide.
http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/2017/1188.html