J Edward v Tavistock and Portman NHS Foundation Trust
[2023] EAT 33
Dr. Bernadette McInerney v Nottinghamshire Healthcare NHS Foundation Trust
30 September 2024
[2024] EAT 158
Employment Appeal Tribunal
A doctor sued her former employer for unfair treatment and won. She then appealed the amount of money she was awarded for lost income due to the unfair treatment. The appeal court agreed with the original decision, saying the doctor didn't provide enough evidence to show she lost income because of her employer’s actions.
Key Facts
- •Dr. McInerney, a Consultant Forensic Psychiatrist, retired from Nottinghamshire Healthcare NHS Foundation Trust in 2019.
- •She brought claims for constructive unfair dismissal and victimisation.
- •The Employment Tribunal found in her favour on both claims.
- •The appeal concerns the remedy awarded for victimisation, specifically the £23,344.30 loss of earnings.
- •Dr. McInerney claimed substantial losses due to inability to undertake medico-legal work after the victimisation.
- •The Employment Tribunal rejected her claim for substantial losses due to lack of medical evidence supporting her claim of diminished capacity and reputational damage.
- •The Tribunal awarded her £20,000 for injury to feelings and £10,000 for aggravated damages, which were not appealed.
Legal Principles
Remedies for discrimination under the Equality Act 2010; compensation corresponds to what a county court could award in tort or judicial review.
Equality Act 2010, sections 124 and 119
Compensation for discrimination should put the claimant in the position they would have been in but for the unlawful conduct; a percentage chance approach is generally used for future losses.
Edward v Tavistock and Portman NHS Foundation Trust [2023] EAT 33
The burden of proof for failure to mitigate loss rests on the respondent; they must show the claimant acted unreasonably.
The 'eggshell skull' rule applies; a discriminator takes their victim as they find them.
Appellate tribunals cannot overturn Employment Tribunal conclusions on remedy simply because they would have reached a different conclusion.
Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871
Reasons given must allow a party to understand why they lost.
Simpson v Cantor Fitzgerald Europe [2020] EWCA Civ 1601
Outcomes
Appeal dismissed.
The Employment Tribunal did not err in law. The Tribunal's findings were based on the lack of sufficient medical evidence to support Dr. McInerney's claim of substantial loss of earnings due to inability to undertake medico-legal work, finding that the claimant had not suffered a fundamental loss of confidence preventing such work.
Rejected claim for medico-legal loss of earnings.
Insufficient medical evidence to support the claim of loss of confidence preventing medico-legal work; the Tribunal found that the claimant did not adequately attempt to secure such work, and noted inconsistencies in her actions.
Retirement age set at 67.
Claimant's assertion of working until 75 lacked independent evidence; the Tribunal used statistics from comparable consultants as a basis.
Rejected application of the 'eggshell skull' rule.
The Tribunal considered the claimant's condition but rejected her evidence that victimisation caused a fundamental loss of confidence.
Rejected claim of failure to mitigate.
The Tribunal found that the claimant did not suffer a loss of earnings for medico-legal work, not that she failed to mitigate a loss.