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In Young v J-Care Support Services Ltd (ET/1600044/2018) an employee’s injury to feelings award was limited by an Employment Tribunal when her witness statement detailing the impact the discrimination had allegedly had on her mental health was contradicted by mitigation evidence showing numerous job applications for senior positions.

The factual background in Young v J-Care Support Services Ltd

Ms Young (the ‘Claimant’) was employed as a manager by J-Care Support Services Limited (the ‘Respondent’). On 20 November 2017 Mrs Kelly McGregor, the owner of the Respondent, sent a text to the Claimant which read ‘exactly like Jamie said u r the manager & supposed 2 ensure the smooth running of the service but u can’t exactly do that when u have got 2 kids’ and then went on to make further comments about the difficulties the Claimant faced in respect of childcare. 

The Claimant brought claims for indirect discrimination and harassment in an Employment Tribunal (‘ET’) and on 15 November 2018 the Employment Tribunal upheld those claims.  On the 20 November 2019 they considered the Claimant’s Schedule of Loss at a Remedy Hearing which amounted to £136,580.96.

Injury to feelings

The Claimant sought £35,000 for injury to feelings under her Schedule of Loss.

During her employment the Claimant had significant mental health issues and was detained under the Mental health Act for a short period due to a misdiagnosis of psychosis, related to the birth of her second child.  She was prescribed Sertraline to help aid with her recovery. The Claimant’s medical records which post-dated the termination of her employment did not make any significant reference to her mental health nor did they record at any time that the Claimant associated her mental health as principally being caused by the Respondent’s treatment of her.

When considering the correct level of injury to feelings award the ET also considered the numerous applications the Claimant made for jobs post the termination of her employment.  They noted that she applied for some very senior roles including one with a salary of £70,000 a year.  The ET undertook a comparison of her descriptions of her impediments as set out in her witness statement and medical records and her confidence to apply for quite senior roles including the very highly paid role for a Recruitment Agency.  The ET failed to find the sufficient consistency between her confidence to apply for those roles and her description of her symptoms as set out in her witness statement. 

In relation to the Claimant’s depressive illness the ET found that the significant periods of depression in the Claimant’s medical records preceded the Respondent’s conduct towards her and that she was taking Sertraline to help with her palpitations, albeit that those reoccurred after her resignation.

Taking everything into account, the ET acknowledged that the Claimant did suffer as a consequence of her dismissal.  However, the degree to which she said she suffered as set out in her statement was not persuasive and they preferred the evidence of her mental health as displayed through her willingness to take up diverse employment roles.  Consequently, they concluded that the proper award for injury to feelings was £5,000.

Compensation for loss of income and mitigation

The ET had to decide how long the Claimant would have remained in employment, but for the discriminatory acts of November 2017.  In November 2018 due to the death of a client, the Respondent lost a substantial ‘care package’ and this happened again in January 2019 and once more, post-January 2019.  The ET held that it was unlikely that the Respondent would have been able to sustain a Manger on a gross annual salary of £33,000 after losing so much income and would have been made redundant by 28 February 2019.

In May 2018 the Claimant applied to work with Trinity Nursing Services.  Her application progressed and she was discussing with her agent paying for her DBS certificate in two tranches with a view to working two shifts a week to start with.  However, the chain of correspondence ended on 23 May.  The ET held that if the Claimant had made reasonable efforts to mitigate her loss she would have been able to take up the job, initially for two days a week, on the expiry of her MED 3 certificate on 13 July.

The Claimant was therefore only awarded loss of income for the period 1 August 2018 to 28 February 2019.  This amounted to £19,882.31.

Our solicitors’ comments on the case

Sacha Barrett, a Senior Associate in the employment department at Redmans, made the following comment on the case ‘In this case there was a conflict between the Claimant’s evidence as to the impact the discriminatory acts had on her mental health and her mitigation evidence which  the Employment Tribunal ultimately preferred.’

The decision of the Employment Tribunal in Ms Young v J-Care Support Services Ltd (ET/1600044/2018) can be found here.

About

Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk. Redmans have offices in Richmond, Chiswick, Hammersmith, Fulham, Kingston, Wimbledon, Ealing, Kings Cross and Marylebone (meetings strictly by appointment only).

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