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In the case of Miss Austin v The Leeds Teaching Hospitals NHS Trust (ET/180139/2017) the Employment Tribunal held that an employee with 25 years’ service with the NHS who was dismissed for checking her medical records had been subjected to a discriminatory dismissal, and awarded her almost £300,000 in compensation.

The facts in Austin v The Leeds Teaching Hospitals NHS Trust

Miss Austin (the ‘Claimant’) was employed by The Leeds Teaching Hospitals NHS Trust (the ‘Respondent’) for 25 years.  She suffered from a variety of medical conditions including depression, anxiety and fibromyalgia.  Her medical conditions caused her to check her medical records repeatedly.  As a result, the Respondent commenced an investigation which caused her further anxiety.  As a result of her anxiety, she pestered her line manager for information about the investigation, because of which the Respondent suspended her.  She was then summarily dismissed on 23 May 2017, 18 months after the date of her least alleged offence. 

The decision of the Employment Tribunal

The ET found that the Claimant was neither blameworthy or culpable in that her behaviours arose from her disability.  The ET held that the Claimant had been unfairly summarily dismissed and suffered disability discrimination.

Remedy

Damages for breach of contract

It was not disputed that the Claimant’s contract entitled her to one week’s notice of dismissal for each year of continuous service, subject to a maximum of twelve weeks. The Claimant, having twenty-five years of service was therefore entitled to 12 weeks’ notice. Her net weekly salary was £282.89 so she was awarded £3,394.68 net.

Unfair dismissal

Her basic award for unfair dismissal was £8,470.38 gross.

Loss of statutory rights

The Claimant was awarded £565.78 net for loss of statutory rights.

Past loss of earnings

The ET, following D’Souza, awarded the Claimant compensation for past and future loss under the discrimination legislation alone to avoid double recovery. 

Mitigation of loss

When considering whether the Claimant had successfully mitigated her loss, the ET considered carefully how the Claimant’s medical conditions had impacted on her ability to find alternative employment.  Medical experts instructed to produce a joint report for the proceedings agreed that the Claimant had a ‘long history of a complex interaction of medical difficulties and psycho-social difficulty’. However, the report concluded that her ability to work full time at the end of 2017 and early in 2018 together with her attendance at college indicated the mildness of her disorder and boded well for her future employment.

The joint medical experts agreed that with a course of 20 CBT sessions after the ET proceedings had ended, the Claimant would be able to return to work.  They believed she would be able to return to work 6 months after the proceedings had ended.

Eggshell skull rule

The ‘eggshell skull’ principle (‘take your victim as you find them’) was relevant to the issue of mitigation in this case. The question for the ET when considering whether the Claimant had successfully mitigated her loss was not what they would think or do or what would be objectively reasonable to think or do in the circumstances.  The test was instead an objective one: ‘Was it reasonable for the Claimant to make the choices she did in her particular circumstances?’  The ET held that the Claimant’s decisions in respect of new employment opportunities had to viewed through the lens of what would be considered unreasonable for someone with a pre-existing mental health condition and paranoid and negative thinking.

The Claimant struggled to find another job partly because she believed the Respondent was trying to block her attempts to regain employment in the public sector.  This included paranoid beliefs about correspondence between them and prospective employers. 

The claimant’s job search

The Claimant presented evidence of over 50 job applications made from May 2017 to February 2019.  She was repeatedly rejected.  The ET accepted that the Claimant had behaved reasonably in her job search taking into account the emotional effects of the discrimination, her mental and physical health and the fact that she was preoccupied by the ET proceedings and paranoid about prospective employers gossiping about her with the Respondent. 

Reference

The Claimant’s job search was impeded by the fact that the Respondent did not give the Claimant a reference straight away after she was dismissed.  When she was provided with a reference, it included the fact that the Claimant had been dismissed for gross misconduct for a breach of confidentiality.  This obviously negatively impacted on her ability to find replacement work.  Even after the Claimant’s claims had been upheld in the ET, the Respondent failed to revise the reference.  This meant that the Claimant’s efforts to find work up to the date of the remedy hearing may well have been impeded by the Respondent’s misleading reference. 

Decision to retrain

In around February 2019 the Claimant made the decision to retrain as a hairdresser after failing to find work in the public sector.  The ET held that nearly two years after being dismissed, it was a reasonable decision to give up and change direction altogether.

Summary

The ET found that the Respondent was liable for the Claimant’s financial loss up to the date of the remedy hearing.  The amount she received was increased to take into account pay rises she would have received had she remained employed by the Respondent, but monies earnt by the Claimant in her temporary work with the HMRC as well as her job seekers allowance were deducted.  The total amount awarded for past financial loss was £16,037.

Expenses

The Claimant made claims for the following expenses:

  • Healthcare benefits
  • Dental Treatment
  • Chiropody appointments
  • Mileage
  • Mortgage interest
  • Bank charges

The Claimant had healthcare benefits whilst employed by the Respondent.  The ET made no award in respect of replacement healthcare benefits and dental appointments and chiropody appointments as the Claimant failed to provide sufficient evidence of them.

The Claimant was awarded a sum in respect of mileage expenses incurred whilst attending job interviews but refused to award bank changes because of insufficient evidence.  Additional mortgage interest payments as result of the Claimant having to change her mortgage to an interest only mortgage were covered.

The total award for expenses was £17,763.

Future financial loss

In her schedule of loss the Claimant claims future loss of earnings for 12 months from the remedy hearing.  The Claimant was awarded £16,702 which represented losses of wages for a year based on the rate of pay applicable for her job in the relevant year.

Pension loss

The Claimant claimed career long pension loss totalling £158,910. The Claimant claimed that had she remained employed by the Respondent she would have continued to work until she was 70. The ET decided that a retirement age of 67 was more likely and reduced the award for pension loss accordingly.  They said the correct figure for pension loss was £108,860 gross or £96,700 net.

Non-pecuniary loss

Injury to feelings

The ET held that the Claimant’s reaction to her dismissal was exaggerated by her existing vulnerability.  They accepted the Claimant’s evidence that her dismissal affected her ability to socialise and engage in hobbies in the same way as previously and that she lacked motivation and confidence, getting stressed and nervous and suffering panic attacks.  The Claimant said ‘I have lost my job, my career, everything that 25 years service had built up.  I’ve lost my confidence, my daily routine and my structure.  I have lost relationships and friends.  I have lost the ability to make or maintain either.  I’ve lost the person I used to be.’

The Claimant sought an award of £44,000 (being the top of the upper Vento band). The Respondent’s figure was £8,000 (top of the lower band or bottom of the middle band).  The ET concluded that taking into account the findings of fact, the Claimant’s injury to feelings was to be assessed towards the bottom end of the top Vento band.  The Claimant had 25 years’ service, the impact on her life had been profound and the injury had been suffered over a prolonged period and compounded by the Respondent’s failure to correct her reference.  The ET decided that an award at the bottom of the top Vento band was more appropriate.

When awarding an amount for injury feelings, the ET reduced the award by 10% because the Claimant’s injury to feelings was partly attributable to factors other than the discrimination. 

The amount she was awarded was £27,423.

Personal injury

The Claimant said she suffered a personal injury of an exacerbation of an existing injury because of the Respondent’s discrimination.  The ET agreed and awarded her £3,000.

Total amount awarded

The Claimant’s total award was £269,113.

Our solicitors’ views on the case of Austin v The Leeds Teaching Hospitals NHS Trust

Sacha Barrett, a Senior Associate in the employment department at Redmans, made the following comment on the case ‘This case provides an excellent summary of how Employment Tribunals assess different aspects of Claimant’s claims and the importance of keeping records of mitigation attempts and expenses incurred.  It also highlights the level of awards that can be made in discrimination cases even where an employee’s salary is not particularly high’

The decision of the Employment Tribunal in Miss Austin v The Leeds Teaching Hospitals NHS Trust (ET/180139/2017) 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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