In McInerney v Nottinghamshire Healthcare NHS Foundation Trust (Victimisation) [2024] EAT 158 HHJ James Tayler (in the Employment Appeal Tribunal) dismissed the claimant’s appeal in relation to loss of earnings. The Employment Tribunal had found that the claimant had failed to establish loss of earnings.  That decision was upheld on appeal.

“The Employment Tribunal was troubled by the lack of any significant medical evidence to support the very substantial asserted losses…”

THE CASE

The claimant had been successful in claims in the Employment Tribunal for constructive dismissal and victimisation.  She had been employed as a Consultant Forensic Psychiatrist and retired in February 2019 as a result of the respondent’s conduct.

THE AWARD OF DAMAGES

At a remedies hearing the claimant claimed loss of earnings for over £2 million.  This included a loss of earnings as an expert witness in legal proceedings where the claim was put at £1,744.080 gross,  £1,071,540.32 net.

The tribunal made an award of £23,344.30 for loss of earnings.

The claimant appealed that decision.

CONSIDERATION OF THE JUDGMENT AT FIRST INSTANCE

The judge dismissed the claimant’s appeal. There was a marked lack of evidence before the tribunal to support the claim for loss of earnings. The tribunal specifically rejected an argument that the claimant, as a Consultant Psychiatrist, could give evidence herself in relation to her psychiatric condition.

“5. On 15 August 2022, the claimant served a final schedule of loss in which the compensation
she claimed increased significantly, predominantly because the claimant contended she had very
substantial losses because she had not been able to undertake medico-legal work because of damage
to her reputation. Shortly before the hearing the claimant served a further statement in which she
contended that her losses in respect of medico-legal work resulted from a loss of confidence caused
by the victimisation. The final schedule put the claimant’s losses at £2,114,140.90 gross. The
claimant’s losses were calculated on the basis that she would have retired at 75.

6. The Employment Tribunal was troubled by the lack of any significant medical evidence to
support the very substantial asserted losses:

10. This is a very high value claim which primarily rests with the Claimant’s
financial losses she says arise as a result of her mental health issues caused by her
victimisation by the Respondent. As a consequence, the Tribunal consider medical
evidence to be essential to enable proper consideration of the effect of the
victimisation on the Claimant’s mental health. It is very unfortunate, therefore, that
no independent evidence was produced giving a diagnosis and prognosis.
Mr Allen submitted that we did not need medical evidence because we could rely on
the letter from Dr Patricia Hughes (to which we refer more fully below) and the
Claimant’s own evidence. Mr Allen suggested that the Claimant, as a Consultant
Psychiatrist, was well placed to give evidence on her mental health. We cannot agree
with that submission. Relying on a self-diagnosis in such a high value claim would
in itself raise potential issues, not the least being the cynical view that she would
know what to say to support her claim.

11. The only written medical evidence in this hearing is a letter dated 28 October
2022 from Dr Patricia Hughes, Consultant Psychiatrist in Psychotherapy … Dr
Hughes no longer practises as a doctor but as a psychotherapist. As a consequence,
she does not make a diagnosis or give a prognosis in relation to the Claimant’s
alleged mental health issues of anxiety, low mood, social isolation and loss of
confidence. Further, she says she first saw the Claimant only six months before this
hearing in May 2022 and regularly thereafter. She records what the Claimant told her
about suffering from, inter alia, anxiety and low mood and social isolation “… since
she was involved in a Serious Untoward Incident enquiry following the death by
suicide of one of her patients in Rampton Hospital”. This does not help the
Claimant as she must show that the act of victimisation in not appointing her to the
FGC role caused the mental health issues which prevent her from working. No doubt
in order to cross this particular bridge, Mr Allen submitted that the Respondent must
take the Claimant as they find her following the tortious principle of the egg shell
skull rule. The problem with that argument is that, without proper medical evidence,
how are we to find the Claimant?

12. At the very least, we would expect the Claimant’s GP records to be produced but
there are none. This was not addressed in the hearing so we have no idea whether the
Claimant consulted her GP. Further, and importantly, there is no evidence before us
as to what, if any, medication the Claimant was prescribed for her mental health
issues.

7. The Employment Tribunal also considered that the lack of medical evidence was
problematic in relation to the claimant’s contention that she would have worked to 75:

14. The Claimant further claims that, but for her mental health issues caused by the
victimisation, she would have worked until she was seventy-five. Again, medical
evidence would have been helpful by clarifying there were no other underlying
medical issues which would have prevented this aspiration. In the absence of
medical issues which would have prevented this aspiration. In the absence of an
independently supported diagnosis and prognosis, we find difficulty in supporting
the Claimant’s arguments and submissions. In our view, the absence of an expert
medical report is a surprising and fundamental omission.

8. The Employment Tribunal concluded that loss should be calculated to a retirement age of
67:
Before moving on to detailed calculations, we must consider the age at which the
Claimant says she will have worked until. As before, we were hampered in
determining this point by the lack of medical evidence. At the time of the
victimisation, was the Claimant fit and well with no underlying health conditions?
She quotes a life expectancy of 87.3 years … but does not explain the source of this
statistic. The Respondent, in arguing the relevant age should be taken to be 67,
produces statistics from its own Consultant Retirement Data … taken from over 40
consultants who had retired over a period of 10 years. Of course, every one of them
will be different and have different priorities, but an unchallenged statistical source
must carry more weight and, for that reason, we accept 67 as being the likely age at
which the Claimant would wish to cease work.

9. The Employment Tribunal rejected the contention that the claimant had suffered a loss of
reputation.

17. One of the main threads of her argument was that her reputation had been
demolished. The Employment Judge asked her whether there was any evidence of
this which prompted a long, rambling answer which did not answer the question.
The Judge then asked whether it would be accurate to say that the demolition of her
reputation was her perception and she agreed it was. This was an important
concession by the Claimant as she relies on her allegedly tarnished reputation for not
pursuing medico-legal assignments for fear of being aggressively cross-examined by
those with knowledge of that reputation. Again, she was unable to provide any
corroborating evidence, even from her former friends/colleagues or her husband.

10. The Employment Tribunal returned to this issue in its concluding comments:

56. Mr Allen supports the argument around the loss of reputation point with
references to paragraphs in the liability judgment. We do not accept that anything
can rest on these comments. In the main, they are comments about the fact that the
Respondent’s management had no regard to the impact their conduct would have on
the Claimant’s reputation. Further, in one example given …, the reference to the
Claimant’s reputation was not a finding by the Tribunal but a submission made by
Ms Grace. We would also comment that recording that a party had no regard for the
other’s professional reputation does not automatically lead to the conclusion that the
reputation has actually been tarnished. It was open to the Claimant to produce
evidence of this reputation does not automatically lead to the conclusion that the
reputation has been tarnished. It was open to the Claimant to produce evidence of
this but she did not. Ms Criddle also makes the valid point that the Coroner’s
comments of having no concerns with the Claimant’s care of the patient who died,
this Tribunal’s liability judgment and press coverage illustrate a lack of damage to
the Claimant’s reputation.

11. The Employment Tribunal considered the claimant’s contention that she had not been
undertaking medico-legal work because the victimisation had resulted in a loss of confidence:

44. By far the most significant in terms of value of the Claimant’s heads of claim is
the alleged losses arising from her inability to undertake medico-legal work which
she puts at £1,744,080 gross, £1,071,540.32 net (page 371). Once more, however,
there is no medical report giving a diagnosis or prognosis. The Claimant says her
mental health issues result in her not making herself available for such reports
because she was unable and, therefore, unwilling, to appear in court to be crossexamined on the content of her reports. She maintains that her loss of reputation
amongst others, which we have already considered above, her loss of confidence and
the fact that she was no longer working in the NHS are factors which conspire
against securing medico-legal work.
45. At paragraph 7 of the joint report of Professor Rix and Dr Appleyard they say:

“We are of the opinion that if the Claimant has the confidence and if there has
been no reputational damage, she would be able to obtain instructions has been
no reputational damage, she would be able to obtain instructions in criminal,
family, civil (personal injury), mental health law, prison law asylum and
immigration and employment law cases”.
Further, at paragraph 12 of the joint report, they say:
“We agree within a matter of two or three months it is probable that the
Claimant could have started receiving instructions in criminal cases, personal
injury and, specifically, medical negligence cases where psychiatric injury is
alleged to have occurred, family court cases, cases of alleged clinical negligence
related to medium and high secure care and cases that required expertise in
gender identity issues”.
At paragraph 16 of the joint report they say:
“Not being any longer employed should not have an impact on the Claimant’s
ability to secure medical-legal work given that she has ongoing clinical
experience as a mental health tribunal doctor and on the assumption that she
would be able to obtain instructions through a medicolegal company”.
They also agree that that the closure of the GMC investigation and favourable
liability judgment by this Tribunal would have meant the Claimant could have
resumed medico-legal work if mentally fit to do so.
46. The Claimant seems to have adopted the stance that she could not undertake any
medico-legal work for fear of being cross-examined in court. Dr Appleyard in his
evidence said that his own expert witness company had one psychiatrist on its
register of experts who also did not wish to engage in preparing reports which might
involve having to appear in court and that psychiatrist received as many instructions
as others registered with the company. Specifically, Dr Appleyard said there was
plenty of work available in the housing sector which never resulted in the expert
having to attend court.

47. It was not until September 2022 that the Claimant registered with Expert
Witness, a company which receives and gives to those registered with it, instructions
to prepare medico-legal reports in exchange for a commission …. Very quickly after
registering, the Claimant received 3 lots of instructions to prepare medico-legal
reports and declined all of them. We were troubled by this apparent inconsistency. It
is not clear to us why the Claimant did not register with such a company before or
why she did so very recently whilst claiming not to be able to cope with the work
due to her mental health issues. Did she now feel able to cope with such work or did
she believe she could be instructed on matters which did not involve court
attendance? More cynically, did she register with Expert Witness to support an
argument that she had attempted to mitigate her loss?

48. As with the other heads of claim where the Claimant relies on her mental health
issues, we do not have produced to us a diagnosis or prognosis as to the Claimant’s
health. There is no other witness to corroborate these undiagnosed mental health
issues or at least give information of any prescribed medication. There is no witness
evidence to corroborate the alleged reputational damage to the Claimant arising from
the victimisation. There is no witness evidence to testify as to the Claimant’s social
anxiety. The experts, reporting jointly, say the Claimant could have obtained
medico-legal work but she did nothing about this until a few months before this
hearing. All we have in relation to her mental health issues is her own self-diagnosis
and an inconclusive letter from Dr Hughes. Accordingly, the Tribunal makes no
award for this head of claim.
12. The Employment Tribunal found as fact that the claimant had not suffered a loss of
confidence because of being victimised that prevented her from undertaking medico-legal work.

THE CLAIMANT’S UNSUCCESSFUL APPEAL TO THE EMPLOYMENT APPEAL TRIBUNAL

On appeal the judge rejected the argument that the tribunal had erred.

16. The parties relied on the helpful recent summary of the correct approach to assessing
compensation for discrimination in Edward v Tavistock and Portman NHS Foundation Trust
[2023] EAT 33, [2023] IRLR 463 at paragraphs 18 to 26. Compensation is to be awarded for losses
that flow directly and naturally from the tort. The Employment Tribunal should seek to ensure that
as best as money can do it, the claimant is put into the position she would have been in but for the
unlawful conduct of the respondent. When assessing what may or may not happen in the future the
Employment Tribunal should generally assess the chances of the various possibilities occurring.

17. When assessing future loss of earnings, where the loss will not be career long, the general
approach is to fix on a date that is treated as the date on which the loss will end, not on the basis
that on balance of probabilities the loss will end on that date, but to reflect the chances that the loss
will end sooner or later.

18. If it is asserted that a claimant has failed to mitigate her loss the burden is on the respondent
to make good that contention. To establish a failure to mitigate, the respondent must establish that
the claimant has acted unreasonably, not that she failed to act reasonably.

19. A discriminator must take their victim as they find her. If, because of particular
vulnerability, the acts of the discriminator cause the claimant much greater damage than might
usually be expected, the discriminator is liable for the actual damage caused. This is known as the
eggshell skull principle.
20. An appellate tribunal is not entitled to interfere with the Employment Tribunal’s conclusions
on remedy because it would have reached a different conclusion on the same materials: Vento v
Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871 [2003] ICR 318, CA at

21. The obligation to give reasons requires that a party knows why she lost: Simpson v Cantor
Fitzgerald Europe [2020] EWCA Civ 1601, [2021] ICR 695, CA at paragraphs 29 to 31 and 46.
Ground 1 – Medico-legal loss

22. I do not consider that the Employment Tribunal erred in law in failing to apply a percentage
chance approach to the medico-legal loss. On a proper reading of the judgment, the Employment
Tribunal found as a fact that the claimant had not suffered a fundamental loss of confidence that
prevented her from carrying out medico-legal work. The Employment Tribunal was entitled to take
into account the lack of significant supporting medical evidence. The Employment Tribunal was not
bound to accept the claimant’s evidence because she is a psychiatrist. This was not, as the claimant
asserts, treating the claim as if it were for personal injury, but assessing whether the claimant had
been caused a loss of confidence as a result of being victimised by the respondent. The
Employment Tribunal was not assessing the likelihood of future events, which would generally
require the assessment of the possibilities, but determining whether the claimant had established
that she had suffered a loss of earnings for medico-legal work that flowed from the action of the
respondent in not considering or appointing her to the role of Forensic Psychiatrist in the Forensic
Gender Clinic.

23. The reasons of the Employment Tribunal were more than sufficient for the claimant to
understand why she failed in this element of the claim for loss of earnings.

24. In argument, Ms Grace, for the claimant, asserted that there was a period during which the
claimant was limited in undertaking medico-legal work by loss of reputation, before it was repaired
by the determination of the Employment Tribunal and favourable press reporting. This was not a
ground asserted in the ground of appeal. It would not be fair to permit it to be raised in argument.
Ground 2 – Retirement age

25. I do not consider that the Employment Tribunal erred in law by applying the wrong
approach to determining the retirement age of the claimant for the calculation of future loss. The
claimant’s assertion that she would have worked to 75 was unsupported by any independent
evidence. The Employment Tribunal was not required to accept the evidence of the claimant on this
point. The Employment Tribunal fixed on an age that was common for people in comparable roles.
This was an assessment that, in effect, provided for the possibility of earlier or later retirement. I do
not consider the Employment Tribunal erred in law in the approach it adopted. The Employment
Tribunal gave sufficient reasons for its decision.

Ground 3 – eggshell skull
26. I do not consider that there was a failure to take account of the eggshell skull principle. I
cannot see anything in the judgment to suggest that the Employment Tribunal failed to take the
claimant as she was when assessing whether she had established that she had suffered a
fundamental loss of confidence because of being subject to victimisation. The Employment
Tribunal rejected the claimant’s evidence on this point. It was entitled to do so.

Ground 4 – mitigation

27. I do not consider that the Employment Tribunal erred in law in its application of the burden
of proof in relation to a failure to mitigate. The Employment Tribunal held that the claimant had not
suffered the loss of earnings for medical-legal work, rather than that she had failed to mitigate a
loss. The Employment Tribunal noted the limited efforts that the claimant made to obtain medicolegal work. This was as a subsidiary component of its reasoning. It suggested that the claimant did
not wish to undertake medico-legal work rather than that she was unable to do so because of a loss
of confidence. It was a matter that the Employment Tribunal was entitled to take into account.
28. I do not consider that any of the grounds of appeal are made out. The appeal is dismissed.

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