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Hampshire County Council v Wyatt - Karen Moss, 3PB Barristers

11/07/17. It has long been the case that it is within the jurisdiction of employment tribunals, to award personal injury damages to employees where they can demonstrate that their employer’s unlawful discrimination caused psychiatric or physical injury. In Sheriff v Klyne Tugs (Lowestoft) Ltd [1999] IRLR 481, CA, Mr Sheriffclaimed that he had suffered a nervous breakdown as a result of a campaign of race discrimination at work. The Court of Appeal found that it was within employment tribunals’ jurisdiction to award personal injury compensation where causation was proved. Stuart-Smith LJ endorsed the view that in such a situation it would be wise for a complainant to obtain a medical report to show the extent of his or her injuries.

Hampshire County Council v Wyatt

In a recent judgment in the Employment Appeal Tribunal – Hampshire County Council v Wyatt UKEAT/0013/16 (13 October 2016) – Mrs Justice Simler DBE gave important presidential guidance on the questions which frequently arise in discrimination remedy hearings when tribunals consider claims for non-pecuniary damages and/or where there might be competing causes of injury. Ms Wyatt had been successful in proving a failure to make reasonable adjustments, discrimination arising from disability, and victimisation (under ss.15, 20 and 27 Equality Act 2010) as well as “ordinary” unfair dismissal (under ss.94 and 98 Employment Rights Act 1996). She had worked as a carer for 40 years at the date of her dismissal. She had been severely dyslexic all her life, and had become depressed shortly after she was suspended for suspected misconduct by the Council. Both her dyslexia and depression were admitted to be statutory disabilities. By the time her (lawful) suspension was lifted, she was unfit to work as a result of depression. She remained unfit, and the Respondent continued in their failure to make reasonable adjustments, until a discriminatory process lead to her unfair dismissal.

Ms Wyatt did not have any expert report to rely upon to prove causation of her personal injury (or injury to feelings). She had lay witness testimony as to her mental state before and after the discrimination, and Occupational Health records. Ultimately, the tribunal awarded substantial damages including, pertinently, both an injury to feelings (“ITF”) award and separately a personal injury (“PI”) award, without requiring a medical report. Simler P considered this permissible and cautioned that it cannot be the case that an expert report is necessary before such an award can be made:

'We consider that in cases where there are issues as to the cause or divisibility of psychiatric or psychological harm suffered by a claimant, it is advisable for medical evidence to be obtained. Moreover, there is a real risk that failure to produce such medical evidence might lead to a lower award or to no award being made. However, we do not accept the Respondent's argument that medical evidence is an absolute requirement or that an award cannot be made in the absence of expert medical evidence in every such case bar those of low-value without error of law. We would be concerned to see such a principle established, bearing in mind in particular the financial cost involved in obtaining expert medical evidence.”

What can we learn from Wyatt?

The case of Wyatt is not an authority for the proposition that we need not bother with medical reports in tribunals anymore. It will always be preferable to have a medical report to support claims for PI or ITF. In my experience, however, tribunals are often reluctant to award substantial damages for personal injury or even injury to feelings without an expert report. Wyatt can be used to persuade a reluctant tribunal that the appellate courts do not always disapprove of such action, as long as there are no perverse results. It also reminds us that it is important that a tribunal must bear in mind any competing causes and only award damages for the effects of the unlawful action, but they need not apply a blanket percentage reduction in every case (as in Olayemi v Athena Medical Centre and another UKEAT/0140/15, (18th July 2016)). The tribunal must also beware of double-counting between the ITF and PI awards (as confirmed in HM Prison Service v Salmon [2001] IRLR 425).

It is a common occurrence for medical evidence to be either non-existent or insufficient in many discrimination cases before employment tribunals (where for example the expert has identified the cumulative effect of all alleged acts of discrimination and only half of them succeed as proven acts of discrimination). It is tempting for some tribunals to state that the Claimant has insufficient evidence to show causation of a medical condition, particularly in the case of mental illness. Wyatt is likely to assist a claimant in such a case.


Counsel for the successful Claimant

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