The claimant worked for the respondent bank as a customer services officer from October 2008 until her resignation in May 2014.  In, what was supposed to be her first day in employment, August 2008 she was knocked down by a car causing significant injuries to her leg.  This meant that she had to wear a brace and use crutches when she first began working and she continued to have a limp throughout her employment. Throughout her employment she also developed mental illness.  Both the physical and mental illnesses were regarded as being disabilities under the legislation.

The claimant brought claims for constructive unfair dismissal and disability discrimination.   Both of these claims were successful largely due to the comments that had been made to her relating to her disability and the failure to make reasonable adjustments requiring the claimant to work at the till within the bank’s branch.  This case related to an appeal from the remedies hearing where the claimant argued that the discrimination that she had suffered in her employment led to psychiatric injuries.  The psychiatric injuries were outlined in a medical report with the prognosis being very poor with the conclusion being that she would need future care and that it was likely that she could never return to work.  The claimant argued that in including the future care and assistance the sum claimed would amount to £10.5 million.  At the ET remedies hearing, it was held that the sum should be £4,670,535 plus interest.

The respondent appealed this based upon the ET had failed to consider that the psychiatric injury would have occurred anyway considering the claimant’s pre-existing vulnerability and that the ET had failed in considering the medical evidence being put forward by both sides.  The basis for the ‘causation’ argument came from Hatton v Sutherland [2002] when Hale LJ, as she was then, stated that where there are multiple causes then the employer should only pay for the proportion of the harm attributable to their wrong.

The EAT held that the ET decision that the injury was 75% attributable to the employer and 25% to the road traffic incident was one that was reasonably available to it.   This demonstrates the wide ambit given to the original decision-making body, especially as they will have heard all of the factual evidence.  This was also true in considering the weight that should be given to the separate medical reports that were commissioned by both parties.  For this reason, the substance of the appeals failed.  There was one minor point on which the respondent succeeded but it made no change to the remedy awarded.

Practical Lessons

The level of compensation that was due in this case is one that is extremely rare in employment scenarios.   Whilst this is a rarity, the largest cause of the psychiatric injuries suffered by the claimant was seen to be the discriminatory behaviour rather than the road traffic incident.  In some ways, this demonstrates the effect of the ‘thin skull rule’ and how liability and compensation will relate to the level of harm suffered.  In this case, as the harm was great so was the compensation.  Therefore, employers should be cognisant of the overall effect that discriminatory behaviour could have.
https://www.gov.uk/employment-appeal-tribunal-decisions/royal-bank-of-scotland-plc-v-ab-ukeat-0266-18-da