GOURLAY CASE: Council’s discrimination was the sole cause of the psychiatric injury

Background

Mr Gourlay was employed by West Dunbartonshire Council from 2008 until he was dismissed for gross misconduct in 2015. He later brought claims for unfair dismissal, disability discrimination (failure to make reasonable adjustments), and victimisation. The Employment Tribunal upheld these claims after a lengthy hearing. A subsequent remedy hearing accepted medical evidence that the Council’s actions caused Mr Gourlay to develop a severe depressive illness, making him permanently unfit for work. 

Despite accepting this evidence, the tribunal reduced the compensation for lost earnings and pension by 80%, reasoning that Mr Gourlay would likely have retired early on ill-health grounds or been dismissed lawfully due to workplace relationship breakdowns.  

Employment Tribunal and EAT Decisions 

1. Causation and Compensation: The EAT found the tribunal’s reasoning flawed and its reduction in compensation legally wrong. It confirmed that tribunals must ask not just if dismissal would have occurred lawfully, but also whether a lawful dismissal would have caused the same psychiatric harm. In Mr Gourlay’s case, there was no evidence to support this. 
2. Ill Health Retirement: The tribunal’s speculation that Mr Gourlay might have retired early due to MS or diabetes was also rejected. There was no medical evidence to support this, and the tribunal had misunderstood or misapplied the expert psychiatric evidence that clearly linked his illness to the Council’s actions. 
3. Apportioning Harm: The respondent’s attempt to argue that other factors contributed to Mr Gourlay’s condition failed. The EAT found the tribunal had correctly accepted expert evidence that the Council’s discrimination was the sole cause of the psychiatric injury. 
4. Remittal: The EAT set aside the original compensation figure and remitted the case to a new tribunal to reassess loss, with the possibility of further evidence being considered if needed.

Key Takeaways 

• Causation and long-term harm: When discrimination causes lasting harm, tribunals must fully consider the impact and not reduce compensation based on assumptions or speculation. 

• Medical evidence is key: Clear, credible medical evidence linking an employer’s actions to a worker’s condition is crucial—and must be weighed properly. 

• Legal tests on compensation: Tribunals must apply the right legal principles, focusing on whether a lawful dismissal would have led to the same consequences—not just whether it might have happened. 

• Advocating for full recovery: If a member can’t work again due to discrimination, full career-long loss may be appropriate, especially where expert evidence supports it. 

Top of page picture: The now demolished West Dunbartonshire Council offices at Garshake where victimisation and bullying took place.