The EAT (Keith J) has handed down its decision in Thaine v London School of Economics, in which the approach to apportionment of damages in psychiatric injury cases was considered. The case concerned a female employee, who made 10 claims of sex discrimination against her former employer, 2 of which were upheld.
The Tribunal found that the unlawful discrimination had been a "material and effective cause" of the claimant's ill health, but that there were other "concurrent causes" in her personal life, and her belief that she had been discriminated against in circumstances where the Tribunal had found she had not (i.e. the unsuccessful claims).
The Tribunal assessed the contribution of the unlawful discrimination at 40% and discounted compensation accordingly. The EAT considered whether it was legally open to the Tribunal to discount an award in such a way, ultimately holding that it was. The judgment suggests the proper approach in such cases is to ask
1. did the conduct for which the respondent is liable materially contribute to the harm, and if so
2. to what extent should liability for that harm fairly be attributed to the respondent.