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The Court of Appeal has today given important guidance on how to assess compensation in cases where a claimant’s injury has multiple causes. The decision will be of particular relevance to cases where an employer’s conduct acts in conjunction with other factors to cause psychiatric harm, such as stress at work or depression, to a vulnerable employee.

Mrs Konczak was a secretary at BAE from 1998 until her dismissal in 2007. She experienced a series of stressful events. In April 2006, after a particularly difficult meeting, her line manager said that women take things more emotionally than men, who tend to forget things and move on. That comment, described in the judgment as the “Dent comment”, was the final straw for Mrs Konczak, who did not return to work due to work-related stress.

The Employment Tribunal held that the Dent comment was an act of sex discrimination. It also upheld several other complaints, including of discriminatory dismissal in 2007, but the Dent comment was the important finding for the purposes of the Court of Appeal’s decision. Following prolonged proceedings, in October 2014 the Employment Tribunal held that the Dent comment had caused Mrs Konczak’s illness and that BAE was liable for all losses flowing from it, amounting to around £360,000.

BAE argued on appeal that it was wrong in principle for it to be liable for such a large amount, especially given the various other events, for which it was not legally liable, which it said had contributed to Mrs Konczak’s illness. It argued that the correct approach was for the tribunal to apportion liability between the different factors, following the decision of the EAT in Thaine v London School of Economics [2010] UKEAT 0144/10, [2010] ICR 1422.

The Court of Appeal, rejecting BAE’s appeal, held that there are two ways in which compensation may be reduced in such a case.

Firstly, where an injury has multiple causes, the tribunal should make a “sensible attempt” to apportion liability accordingly. The court discussed conflicting statements of principle in the case-law regarding when such an apportionment is appropriate, in particular in cases of psychiatric harm. It held that apportionment is only appropriate if the injury is ‘divisible’. Underhill LJ explained at [71] that:

“In other words, the question is whether the tribunal can identify, however broadly, a particular part of the suffering which is due to the wrong.”

An injury may be divisible if, for example, the employer’s wrongdoing exacerbated or accelerated a pre-existing illness. Whether a psychiatric illness is divisible is a question of fact in each case. In Mrs Konczak’s case, where the Dent comment was the final straw which pushed her over the edge into mental illness, the Tribunal had been entitled to find that the injury, although it may have been caused by multiple factors, was not divisible.

Secondly, where a claimant has a pre-existing vulnerability or disorder, compensation may also be reduced to reflect the chance that the claimant would have suffered the injury even in the absence of the employer’s unlawful conduct. That line of argument, which may be available to other employers in similar situations, was not available to BAE in light of the procedural history of the case.

The court also gave important guidance regarding the expert evidence required in such cases. Irwin LJ emphasised that experts should always consider whether a claimant had a pre-existing diagnosable disorder prior to the wrongdoing. They should also routinely assess the level of risk that the claimant would have developed an injury as a result of a cause other than the wrongful act.

The Court of Appeal judgment is available here.

Tristan Jones acted for Mrs Konczak.

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