The EAT was recently asked to consider whether a tribunal can reduce a claimant’s injury to feelings award for their own contributory fault.

W, a customer services controller for a train company, has a disability, which resulted in lengthy periods of absence from work. W brought various discrimination claims, two of which were upheld, including a claim that the employer had failed to make reasonable adjustments, when there was a serious delay in organising funding for W to undergo cognitive behaviour therapy (CBT). The employment tribunal awarded W, £22,000 plus interest in respect of psychiatric injury and £19,800 plus interest for injury to feelings in relation to the CBT claim.

The employer and W’s line manager appealed, partly on the basis that the employment tribunal ought to have reduced W’s compensation because she was partly responsible for her psychiatric injury because she had failed to inform the employer of the name of her previous CBT therapist. The EAT held making a reduction to compensation on account of contributory fault will very rarely, if ever, be justified because: (1) of the difficulties in applying the concept of ‘fault’ to the victim of a discrimination claim; and (b) the fact that the discriminator may have acted without ‘fault’.

If Parliament had intended for the concept of contributory fault to apply to discrimination claims, it would have legislated for this. A contributory negligence argument in a discrimination claim may be more appropriately brought as an allegation of failure to mitigate loss.

First Great Western Ltd -v- Waiyego [2018] UKEAT 0056_18_0612