Veale Wasborough Vizards
29 JUL 2016
Does a pre-existing condition permit a Tribunal to reduce compensation for personal injury in discrimination cases?
Senior Associate, Veale Wasbrough Vizards
The Employment Appeal Tribunal (EAT) has asked an Employment Tribunal (ET) to reconsider its reasoning for deducting 12.5% from an employee's compensation due to her predisposition to post-traumatic stress disorder (PTSD).
In Olayemi v Athena Medical Centre and anor, Dr Olayemi was a GP who was employed at the Athena Medical Centre (Athena) until her dismissal in 2008. Since her dismissal, she suffered PTSD and depression and the GMC found her unfit to practice. She therefore suffered substantial loss of earnings.
Due to the treatment she received from Athena's principal, Dr Okoreaffia, she brought claims of sex discrimination, unfair dismissal and breach of contract.
The ET found that she had been subjected to a campaign of harassment designed to intimidate, humiliate and drive her out of Athena. Dr Olayemi was awarded compensation in excess of £513,761 for injury to feelings, personal injury (for her psychiatric condition), past loss, future loss, unfair dismissal and unlawful deduction of wages.
However, a joint expert report from a Consultant Psychiatrist, Dr Gupta, was presented as evidence of Dr Olayemi's previous history of PTSD. His report alleged that her predisposition to PTSD made a 10-15% contribution towards the causation of the present episode. As a consequence, the ET made a 12.5% deduction from Dr Olayemi's awards for personal injury, past loss and future loss, which amounted to £67,430.
Dr Olayemi appealed.
The EAT allowed her appeal, concluding that the evidence before the ET did not justify a blanket reduction in the compensation.
It reiterated the principle that when there are competing causes for an injury, a Court or Tribunal must consider whether the injury is divisible and how it may be divided between the causes. However, the ET had failed to expressly address these questions.
Furthermore, Dr Olayemi relapsed into illness due to the harassment she suffered at the hands of Dr Okoreaffia and no other trigger was suggested at the relevant time. The EAT, therefore, struggled to understand how the ET reached the conclusion that there was another cause for PTSD, particularly considering that Dr Gupta's report indicated that, but for the events at work, it is unlikely Dr Olayemi would have become ill.
The EAT remitted the reduction issue back to the same ET for reconsideration.
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Law and Practice
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Employers are under a duty of care to safeguard the health, safety and wellbeing of their employees. They must treat them fairly and lawfully and protect them from discrimination. Knowledge of a pre-existing condition that makes an employee more vulnerable will only add to this duty and places a greater obligation on the employer to ensure that the employee is not subjected to any treatment that could foreseeably cause a relapse.
It is no defence for an employer to assert that an employee would not have suffered an injury but for their predisposition to a certain condition, where the sole trigger for their relapse was discrimination at work.
Employers should undertake stress risk assessments and ensure that their equal opportunities and dignity at work policies are up to date. Staff should also be trained on the contents of such policies to ensure that they are aware of how to conduct themselves and how to treat their work colleagues.