In Hampshire County Council v Wyatt UKEAT/0013/16 the Employment Appeal Tribunal held that an employment tribunal could make a personal injury award in a disability discrimination case in the absence of medical evidence. It also held that there was no need for medical evidence in an unfair dismissal case when assessing future working prospects.
Mrs Wyatt was a carer, employed by Hampshire County Council. Following serious disciplinary allegations, she was suspended. That suspension triggered depression, which the Council conceded was a disability within the meaning of section 6 of the Equality Act 2010. Mrs Wyatt was also disabled by reason of dyslexia.
While Mrs Wyatt was too unwell to return to work, the Council initially sought to pursue a disciplinary investigation, then changed this to performance management, and finally it started an absence management procedure and then dismissed her for long term absence.
Mrs Wyatt issued proceedings in the employment tribunal (ET), claiming disability discrimination and unfair dismissal
Employment tribunal decision
Mrs Wyatt's claims were successful. The ET held that it had not been unlawful to suspend her, however the way in which the Council had conducted the suspension meeting amounted to unlawful disability discrimination because the Council did not explain matters more carefully and slowly to Mrs Wyatt. This meant that, because of her dyslexia, she did not understand what was happening to her at the meeting and panicked, because she thought she was losing her job. There were then a number of further serious discriminatory acts arising from the way the Council conducted its internal processes with Mrs Wyatt, including her dismissal.
At the remedies hearing the ET found that Mrs Wyatt's depression meant that she was unable to work and that this state of affairs could reasonably be expected to continue for nine months beyond the hearing. It awarded compensation for unfair dismissal on that basis.
In relation to disability discrimination, the ET awarded £15,000 for injury to feelings. It also decided that Mrs Wyatt had suffered personal injury (that is, her depression) in consequence of the Council's discriminatory acts and accordingly awarded a further £10,000. In making the personal injury award, the ET classified Mrs Wyatt's depression as moderately severe under the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases (the Guidelines). Under the Guidelines, cases of psychiatric harm are classified as severe, moderately severe, moderate or less severe. Each classification has a suggested range for appropriate compensation. The range of suggested awards for this classification (under the 12th edition of the Guidelines) was £15,000 to £44,000. The ET awarded less than this range because it took account of the crossover with the injury to feelings award.
The Council appealed the decision to award nine months' financial losses and £10,000 for personal injury, arguing that the awards were excessive in the absence of medical evidence as to causation or prognosis.
Employment Appeal Tribunal decision
At the appeal, the Council relied on the ET's finding that it was a lawful act that had triggered Mrs Wyatt's depression (that is, the fact of her suspension). In essence, the question was: to what extent could the depression be said to have been caused by the Council's unlawful discrimination, as opposed to having been caused by the lawful act of suspension? (If it was caused mainly by a lawful act, this would affect the amount of damages payable.) The Council argued that in such a case, save a low-value one, medical evidence must be obtained to address the issues of causation.
The Employment Appal Tribunal (EAT) rejected this argument, holding that there is no such principle. Both the EAT and the ET commented that it was unusual for there not to be any medical evidence in this type of case but that this was not an absolute obstacle to making an award for personal injury. The ET must consider all the evidence available to it. Subject to the facts of a given case, the evidence might be sufficient to found a personal injury award without the need for medical evidence.
In Mrs Wyatt's case, the EAT held that the ET's award was justified, notwithstanding the absence of a medical report. While suspension had not been discriminatory, the ET had also decided that the manner in which suspension was communicated was unlawful. These two matters were inextricably linked; if the suspension had been communicated in a non-discriminatory manner, depression might not have been triggered; the Council had not in fact argued before the ET that the injury was divisible. The ET was entitled to approach its findings accordingly; there was some supporting medical evidence, in the form of occupational health reports, and the witness evidence presented at the ET hearing demonstrated the effects the Council's actions had had on Mrs Wyatt.
The EAT also rejected the Council's argument that medical evidence was needed to assess future working prospects. It held that "tribunals are expected to deal with compensation for unfair dismissal in a rough and ready way, applying common sense and their best judgment to what is just and equitable in the particular case.”
The most interesting point in this case is the decision that medical evidence is not absolutely necessary for a personal injury claim. However, as the EAT said in this case, it is unusual not to have this type of evidence where causation and divisibility of injury are issues. The EAT also said that it is advisable to obtain such evidence. Accordingly, advisors should be very cautious before deciding not to obtain medical evidence about causation and prognosis.
In this judgment the EAT observed that it is claimants who might be most at risk from not having medical evidence, commenting that the absence of such evidence could lead to a lower award or no award being made. As the facts of this case show however, there could equally be a risk to respondents from a judge sympathetic to the claimant and ready to make a personal injury award.