Injury liability

The law says that employers are liable for any harm that results from discrimination caused at work. The Court of Appeal has held in BAE Systems (Operations) Ltd v Konczak that the job of the tribunal is to identify the harm caused by that discrimination and (broadly) the part of the suffering that results from it.

Basic facts 

Ms Konczak worked as a secretary for BAE from 1998 without any problems. However, after she alleged that she had been sexually harassed by two members of the team. She was moved to another location in January 2005. As she was not given a proper job, she applied for a different role back in the original location. This then prompted her manager, Jeremy Dent, to suggest that she return to the original team, but in a different role. She was very unhappy at that suggestion and at a meeting with Mr Dent in April 2006, she broke down in tears. He then tried to comfort her by saying words to the effect that women are more emotional than men who tend to forget things and move on. 

Ms Konczak went off sick and was certified by her GP as unfit to work because of work-related stress. She did not return to work and in July 2007, she was dismissed. She subsequently brought claims of sex discrimination, among other things. 

Tribunal and EAT decisions 

The tribunal dismissed her claims, except for the “Dent comment”. At a remedies hearing, it held that it was the comment made by Mr Dent in April 2006 which had caused her mental health to deteriorate. Given that this happened in the workplace and as it could not find any other causes that led to the change in her mental state from July 2004 to April 2006, the tribunal held that BAE was responsible for all her losses up until July 2010 when it said she should have commenced a course of medication. It awarded her compensation of just over £360,000. 

The company appealed against the award, arguing that it could not be liable for all the events that had contributed to Ms Konczak’s mental ill health. Had the tribunal taken into account all the different factors and made an objective apportionment of causative responsibility for the injury, it would have come to a very different conclusion. The EAT dismissed the appeal. 

Decision of Court of Appeal

The job of the tribunal in these cases, according to the Court of Appeal was to try to identify a rational basis on which to apportion the harm that could be attributed to the act of discrimination. The aim of the exercise was not therefore to ascertain whether the causes of the harm could be divided up, but whether the harm itself could be apportioned to different causes. “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”.

For example, it might be possible to conclude that a pre-existing illness, for which the employer is not responsible, had been made worse by the wrong (in terms of severity of the person’s symptoms and how long they lasted), and to award compensation reflecting the extent of the aggravation. 

In this case, however, the tribunal found, on the basis of medical evidence, that it was only after the Dent comment that Ms Konczak developed a diagnosable illness. She had not consulted her doctor about her mental health at any point in the two years prior to 26 April 2006. It was clear that, as she had said at the time, the Dent comment was the last straw and had pushed her “over the edge”. She did not, therefore, have a pre-existing illness that could be said to have been made worse by her employer and which would have reduced the company’s liability.

The Court upheld the tribunal decision on compensation.