BAE Systems (Operations) Ltd v Konczak, Court of Appeal - Civil Division, July 31, 2017, [2017] EWCA Civ 1188

Resolution Date:July 31, 2017
Issuing Organization:Civil Division
Actores:BAE Systems (Operations) Ltd v Konczak

Neutral Citation Number: [2017] EWCA Civ 1188

Case No: A2/2015/3778


ON APPEAL FROM The Employment Appeal Tribunal

HH Judge Clark

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 31/07/2017

Before :


(Vice President of the Court of Appeal (Civil Division))




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Mr Paul Gilroy QC (instructed by Eversheds Sutherland) for the Appellant

Mr Tristan Jones (appearing through the Bar Pro Bono Unit) for the Respondent

Hearing dates: 29th & 30th March 2017

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Lord Justice Underhill:


  1. From 1998 until her dismissal with effect from 23 July 2007 Mrs Marion Konczak was employed by BAE Systems (Operations) Ltd. Although Mrs Konczak is the respondent before us and BAE the appellant, it is convenient to refer to them, as they were in the original proceedings, as Claimant and Respondent. Between October 2006 and October 2007 the Claimant brought three sets of proceedings against the Respondent in the Employment Tribunal arising out of alleged discrimination in the course of her employment and her dismissal. The proceedings have had an extraordinarily, and very regrettably, complicated history. There have been four substantive hearings in the Employment Tribunal - two before a tribunal chaired by Employment Judge Cook (referred to before us as ``Cook 1'' and ``Cook 2'') and two before a tribunal chaired by Employment Judge Sherratt (``Sherratt 1'' and ``Sherratt 2''). Each of those hearings has generated an appeal to the EAT. There have also been contentious interlocutory and case management hearings. The Claimant has succeeded in respect of some of her claims but failed in respect of others.

  2. What is before us is the Respondent's appeal against a decision of the EAT (comprising HH Judge Peter Clark) against the most recent decision of the Employment Tribunal (i.e. Sherratt 2), in which the Claimant's compensation was finally quantified at £360,178.60. It is important to note from the outset that the Claimant has suffered throughout the period covered by these proceedings from mental ill health. It is her case that this has been caused or materially contributed to by the unlawful conduct of the Respondent, but it is in any event common ground that it has been prolonged by the stress of her involvement in these proceedings. This makes the very lengthy history of the claim particularly regrettable. It is, however, fair to observe that substantial offers of compensation have been made by the Respondent but rejected.

  3. Before us, as indeed at all previous stages of the litigation, the Respondent has been represented by Mr Paul Gilroy QC. At the early stages of the proceedings the Claimant acted for herself. Following her success on the liability hearing she was for a period represented by solicitors and counsel but since 2008 she has again been unrepresented. She has, however, had the advantage latterly of representation by Mr Tristan Jones of counsel, instructed through the Bar Pro Bono Unit. His written and oral submissions have been of the highest quality.


  4. In view of the nature of the issues before us I need give only the barest outline of the facts giving rise to the Claimant's claims.

  5. From September 1999, when her employment became permanent, the Claimant was employed as a ``Secretary grade 8''. She was part of the liaison team which worked with a detachment of officers from the Royal Saudi Air Force (``the RSAF'') who were working with the Respondent as part of a major project for the supply of aircraft to the RSAF (the ``Al Yamamah Integrated Project Team'' - ``AYIPT''). She was based at Samlesbury, near Preston. Although at first she got on well with the RSAF officers, she became increasingly unhappy following changes in their personnel, and in particular following the replacement of the previous Liaison Officer, General Otaibi, by a Captain Al-Jehani. She says that she was subjected to bullying and harassment, and in particular to two episodes of sexual harassment by two members of the AYIPT team. In January 2005 she was removed, at Captain Al-Jehani's request, from her RSAF liaison role and was moved to the Respondent's commercial team at Warton.

  6. The Claimant was unhappy at Warton because she was not given a proper job to do. In March 2006 she applied for a job back at Samlesbury, but not as part of the AYIPT team. That application prompted a proposal from her line manager, Jeremy Dent, that she should in fact resume working for the AYIPT team, albeit not in her previous role. She was extremely unhappy at that proposal because it would involve her working with officers by whom she had been mistreated previously, including the two officers who she said had sexually harassed her. She believed that her objections to that move were not being taken seriously, and at a meeting on 26 April with Mr Dent and a colleague she broke down in tears. Shortly afterwards, Mr Dent came to see her in her room. In what appears to have been an attempt to express sympathy, however clumsily, he said words to the effect that women take things more emotionally than men, while men tend to forget things and move on. This comment, to which I will refer as ``the Dent comment'', is central to the proceedings.

  7. The Claimant did not return to work the following day. She was certified by her GP as unfit to work on account of work-related stress. She never returned to work thereafter. She was eventually, as I have said, dismissed with effect from 23 July 2007. The reason for the dismissal was not clearly expressed in the dismissal letter but was eventually formulated by the Respondent as being ``it not being appropriate for the claimant to return to her old job in the commercial department and ... there being no other positions for her''.



  8. The complaints made by the Claimant in her three sets of tribunal proceedings can be sufficiently summarised for present purposes as follows:

    (1) Five complaints of sex discrimination relating to her treatment by the Respondent following the move from Samlesbury to Warton at the beginning of 2005. The last of these was based on the Dent comment.

    (2) A complaint of victimisation as regards the handling of a grievance lodged by her in 2006.

    (3) A complaint that the Respondent did not make sufficient efforts to facilitate her return to work in 2007, which was said to constitute a failure to make reasonable adjustments for her illness (which was accepted as constituting a disability within the meaning of the Disability Discrimination Act 1995).

    (4) A failure to carry out a risk assessment, which as I understand it was also characterised as a failure to make reasonable adjustments under the 1995 Act.

    (5) Complaints that her dismissal (a) was on the grounds of her disability and/or disability related; (b) constituted victimisation on account of her previous complaints of sex discrimination; (c) was unfair; and (d) was in breach of contract.

  9. By a judgment sent to the parties on 8 October 2008 a tribunal chaired by Employment Judge Cook dismissed all the claims of sex discrimination save only as regards the Dent comment. It also dismissed the complaint of victimisation arising out of the handling of the grievance. It upheld the claims of failure to make reasonable adjustments. It upheld all the claims arising out of her dismissal, save for the complaint of wrongful dismissal. In so far as the claims on which she succeeded were for discrimination, the door was opened to compensation for injury to feelings and psychiatric injury, together with pecuniary loss consequent on such injury. Directions were given for a remedy hearing. This decision is ``Cook 1''.

  10. I should note one finding in Cook 1 which is relevant to the issues before us. Mr Gilroy had submitted that the Dent comment, even if it amounted to sex discrimination, was de minimis. At para. 70 of its Reasons the Tribunal rejected that submission, on the basis that it accepted the Claimant's evidence (recited at para. 69) that the comment ``had been the final straw'': she said that when she went home after the meeting at which it was made she knew that she could not go back.

  11. The Respondent appealed. By a decision dated 20 July 2009 the EAT (chaired by HH Judge McMullen QC) dismissed the appeal.


    Cook 2

  12. The remedy hearing took place before the same tribunal over six days in April 2011. The delay following the dismissal of the liability appeal is regrettable but it appears to be accounted for by a number of interlocutory disputes. The Claimant was represented by Mr Richard O'Dair of counsel.

  13. The Tribunal heard psychiatric evidence from Dr Kevin Craig for the Claimant and Dr Christopher Jarman for the Respondent. Both had submitted substantial reports, and there was a joint ``statement of agreement/disagreements'' dated 13 June 2010. It also saw a report from Dr Gurpal Gosall, a consultant psychiatrist to whom the Claimant had been referred by her GP in August 2007. For present purposes I need only quote paras. 2.3 and 2.4 of the joint statement, which records the experts' disagreement about the Claimant's state of mental health in the period leading up to the events of 26 April. They read as follows:

    ``2.3 Dr Craig believes Mrs Konczak experienced anxiety symptoms that began from around January 2005 onwards. Her symptoms were mild initially but deteriorated over the ensuing months. Psychiatric symptoms exist on a continuum with normal emotions. A person may feel low in mood or anxious to a mild extent or for a short period of time and this may be considered normal. If sustained and severe, these symptoms cross a threshold and are diagnosed as a mental illness, based on established but subjective criteria. Impairment of function is another significant factor in deciding whether...

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