Tribunal: Barrister entirely responsible for injury
A barrister who caused her assistant to suffer a mental and physical “collapse” has been ordered to pay her over £155,000 in compensation by an employment tribunal.
The barrister admitted describing the assistant on WhatsApp as a “very sick young lady” and saying “the best place for her I think is a mental asylum”.
The names of the parties were kept anonymous. Employment Judge Lewis in East London ruled at the liability hearing that the assistant (C) was employed by the unnamed barrister (D) for less than nine months, but the disability discrimination she suffered led to her being hospitalised and suffering daily seizures akin to epilepsy.
D was a barrister working with a solicitor but employed C under a personal contract which was not with a law firm or chambers.
C worked as “variously a virtual legal assistant, personal assistant and office manager” between the March and December 2021.
Judge Lewis said C made D aware of her post-traumatic stress disorder (PTSD), depression and anxiety in March 2021, before starting to work for her and told D about her fibromyalgia – a chronic pain condition – that summer.
These had “a substantial adverse effect” on her ability to carry out normal day-to-day activities and would frequently leave her feeling exhausted and needing to recuperate after exertion, stress or any sustained activities.
However, since her “health collapsed in July 2022”, C had been “completely unable to work”, unable to “concentrate on anything for any length of time” and “unable to go out alone”.
One of C’s colleagues gave evidence that D had made “unkind comments” about C but the only ones she recalled that related to her disability were sent shortly after she had stopped working for D.
These described C as a “very sick young lady” and said in a later message: “the best place for her I think is a mental asylum” with “no access to internet or wifi and restraints lol”.
The barrister admitted these comments were offensive and said she was “upset” at the time she sent them.
This was harassment, the judge held. Although the comments were made after C had resigned, they were in a work WhatsApp group to her former colleagues and were “closely connected to her former working relationship”.
After becoming D’s personal assistant, C was expected to be available “at the drop of a hat” at all times, but C had asked not to be given work at the weekend because she needed this time to recuperate as a result of her disability.
But D continued to require weekend working, Judge Lewis found. “I am satisfied that it would have been reasonable for D to have adjusted the claimant’s workload so as to allow her two clear days break from work. I find that there was a failure to make a reasonable adjustment in this respect contrary to section 21 of the Equality Act 2010.”
D was guilty of unfavourable treatment as well by threatening C with losing her role as personal assistant if she was unable to work seven days a week.
“Whilst it might be a legitimate aim to have the work completed at a time of D’s choosing, I find that it would have been reasonable for D to have given any work which it was necessary to complete at the weekend to someone else.”
C’s claim of unfair dismissal was rejected because she had less than two years’ service, but her claim for unlawful deduction of wages of £497 succeeded, after the tribunal rejected D’s accusation that C had made up an invoice.
At the remedy hearing, Judge Lewis said the barrister’s discriminatory treatment and the resulting litigation had exacerbated C’s poor mental health and PTSD.
This led to “a period of depression and suicidal thoughts and an increase in the claimant’s medication”.
D’s coping strategies “broke down, her mental health also broke down and she suffered the reoccurrence of the symptoms of [PTSD] such that the impact on the claimant goes beyond normal injury to feelings and has resulted in a personal injury”. As well as the seizures, she has developed “speech and other difficulties”.
Judge Lewis said she was satisfied that D was “liable for the entirety of the injury” and awarded £90,000 for injury to feelings and personal injury.
But for the “complete breakdown in her health” as a result of the discrimination, C could have continued to combine her work for D with selling beauty products part-time and being a student ambassador at her university.
In terms of future losses, the judge found that these would continue for two and a half years, based on C waiting a year to see a consultant and 18 months for her recovery.
She was awarded over £60,400 for past and future loss of earnings, and almost £5,000 in interest, making a total of over £155,400.
I would not employ someone with mental health problems.