Labour & European Law Review Weekly Issue 504 25 January 2017
Although it is advisable for claimants to obtain medical evidence, the Employment Appeal Tribunal (EAT) in Hampshire County Council v Wyatt held that there was no principle of law whereby tribunals could not make a personal injury award without it. That said, the failure to produce medical evidence could result in a lower award or no award at all.
Ms Wyatt, who had worked as a carer for many years, was diagnosed as dyslexic in 2008. She was suspended in May 2013 following serious allegations that had been made about her “method of working”. She went off sick with stress straight after receiving the suspension letter. Although the suspension was lifted, she was told that a safeguarding investigation would still take place.
The disciplinary procedure was discontinued in December and replaced by a managing performance procedure. However, at a meeting on 18 December, she was led to believe that she still might be dismissed. The council then informed her by letter on 13 January that the safeguarding investigation would be closed and she would just be given some informal training. She failed to return to work, however, and was dismissed in April 2014. She brought claims of unfair dismissal and disability discrimination.
Although the tribunal rejected the claim that the suspension itself was an unlawful act of discrimination, it accepted that Ms Wyatt’s dismissal was related to her disability, namely depression. Because the Council had not explained matters carefully and slowly to her at the suspension meeting, she thought she was losing her job because of her dyslexia.
At the remedy hearing, however, the tribunal refused to award compensation for unlawful discrimination relating to the period immediately before Ms Wyatt’s dismissal when she was absent from work due to sickness and only receiving half pay. This was because it was her suspension, which was not in itself an unlawful act, that had led to her depression.
She was awarded nine months’ compensation for future lost earnings, £15,000 for injury to feelings and £10,000 for personal injury. The Council appealed against the personal injury award on the basis that no expert medical advice had been produced to establish either causation or a prognosis for Ms Wyatt’s asserted continuing depressive condition.
The EAT held that although it is advisable for claimants to obtain medical evidence, there was no principle of law whereby tribunals could not make a personal injury award without it, except in low-value claims. That said, the failure to produce medical evidence could result in a lower award or no award at all.
In this case, the tribunal acknowledged that no medical evidence had been produced, but still felt able to conclude that Ms Wyatt’s depressive illness was caused by a “course of treatment” that was unlawful over a considerable period of time. This was because the lawful suspension that had triggered the depression was inextricably linked with the unlawful suspension meeting. Had the meeting been handled lawfully, it was possible that the suspension would not have triggered the injury.
Given that the Council had not argued that the depression could be divided into lawful and non-lawful causes, the tribunal was entitled to find that the serious instances of unlawful action over a considerable period of time had a serious long-lasting impact on Ms Wyatt and had therefore caused or materially contributed to her depression so that the Council was liable for the full extent of it. There was ample evidence to support that conclusion in the Occupational Health reports as well as Ms Wyatt’s evidence and that of her witness.
It therefore dismissed the appeal.
The circumstances of this case give an example of the practical difficulties which could arise if medical evidence became an absolute requirement without which an award could not be made, bar those of low-value.