Susceptible to injury
Labour & European Law Review Weekly Issue 485 31 August 2016
Employers can defend a claim of personal injury by showing that there was another material cause for the employee’s condition that went beyond some earlier “susceptibility”. However, the Employment Appeal Tribunal (EAT) has held in Olayemi v Athena Medical Centre and anor that they still have to show that the earlier susceptibility was completely separate from any harm they caused.
Ms Olayemi worked as a GP at the Athena Medical Centre from 2001 until her dismissal in 2008, after which she was diagnosed with Post Traumatic Stress Disorder (PTSD).
A tribunal upheld her claims of sex discrimination, unfair dismissal and breach of contract on the basis that her employer had subjected her to a campaign of harassment to force her out of her job.
At a remedies hearing Ms Olayemi was awarded compensation of £752,333 which included past and future losses because of her inability to work. This included an uplift following the decision in Simmons v Castle which allows for the level of general damages awarded to a claimant to be increased.
However, the tribunal then made a 12.5 per cent deduction from that total, based on a medical report which stated that a previous episode of PTSD had contributed about 10 to 15 per cent towards causing the present episode.
Ms Olayemi appealed against the deduction to her award and her employer appealed against the decision to award an uplift.
The EAT overturned the tribunal’s decision to apply a reduction of 12.5 per cent, holding that it had failed to expressly consider the practical impact of the earlier episode of PTSD and her employer’s unlawful conduct. As Ms Olayemi had clearly established that her employer’s wrongdoing was a “material cause” of her psychiatric condition (as opposed to the earlier episode), it was not open to the employer to resist her claim by arguing that the only reason she suffered from PTSD after her dismissal was because of an earlier “susceptibility or vulnerability”.
And although it was open to her employer to show that there was another material cause for her condition that went beyond such “vulnerability or susceptibility”, they could not rely on it as a defence unless they could show that it was completely divisible from any harm that they had caused. This is because when there are competing causes for an injury, tribunals must consider the question of divisibility: both whether the injury is divisible and how it may be divided between potential causes.
In this case, it was clear that Ms Olayemi was predisposed to suffer from PTSD by virtue of the earlier episode. If her employer had not harassed her some other trigger would have been required to cause her to relapse into illness, but none was suggested to be in play at the relevant time.
In terms of the uplift, the EAT held that the tribunal was correct to make the award, despite conflicting EAT authorities on the question. The judge decided to follow the most recent decision in Beckford v London Borough of Southwark as it provided “clear direction” to award compensation that corresponds to the amount that could be awarded by a county court. Although the costs regimes in the tribunal are different to those in the civil courts, the effect of the changes to civil litigation funding had aligned them to an extent. There was therefore no reason to deny the uplift in this case.