Tribunal awards over £2million 'career long loss' in sexual orientation case
The level of remedy in a recent case is a warning to employers of the consequences of a finding of unlawful discrimination and harassment. Secretary of State for Justice v Plaistow involved a prison officer who was successful in showing that he had been harassed on grounds of his sexual orientation, victimised for bringing grievances and unfairly dismissed. There was expert evidence that he was suffering from depression, anxiety and post-traumatic stress disorder and that it was highly unlikely he would return to any employment. On that basis the ET made an award which included £41,000 for injury to feelings; £15,000 for aggravated damages and financial compensation of over £2million. The future losses were assessed on a career-long basis assuming that, but for the unlawful conduct, the employee would have worked until retirement age. The ET considered whether he might be able to return to any work in the future but found that possibility was "extremely remote". It applied a 5% discount to take account of the "very slight prospect" that he would have chosen to leave the prison service before pension age. On appeal the EAT decided that the ET were correct to assess compensation on the basis of career long losses, whilst also sending the case back to the ET to take into account some further factors when assessing the level of discount to be applied.
The case has many lessons for employers, not least that there were multiple occasions where managers could have stepped in to stop the harassment from occurring. It underlines the importance of training to ensure that managers and staff understand the consequences of unlawful discrimination and harassment.
Claimants have to launch separate court proceedings to secure Tribunal awards
The Supreme Court has ruled that it is not unlawful that claimants seeking payment of an ET award have to bring separate court proceedings in order to prevent employers disposing of their assets and avoiding liability. The Scottish case of Anwar v The Advocate General (representing the Secretary of State for Business Energy and Industrial Strategy) involved a claimant who had been awarded over £74,000 by the ET for her claim for harassment on the grounds of sex, race and religion. The employer avoided paying the ET award by disposing of the business and funds. The claimant got wind of this and sought to arrest the funds by seeking an interim order from the sheriff court. By that time however, the sums had already been depleted. She maintained that if the ET had the same power as the sheriff court to freeze assets at an earlier stage in the proceedings then she would have been able to recover the sums awarded. She argued that the absence of this power constituted a breach of EU law as it made the enforcement of her discrimination rights 'excessively difficult'.
The Supreme Court has now rejected the Ms Anwar's case. It was found that it would have been possible for Ms Anwar to apply to the sheriff court to freeze assets in this case even though the sheriff court was not dealing with her discrimination claim. The fact that she had to apply to a different court to do this whilst her discrimination claim was being heard by the ET did not make enforcement of her rights 'excessively difficult'. This means that claimants and their representatives will need to be extra vigilant when commencing ET proceedings where there is a risk that the employer may seek to dispose of assets to avoid liability. It may mean taking protective measures in the civil courts at an early stage of the ET claim.
Marketing director made redundant while on maternity leave was discriminated against
An ET has ruled that a marketing director who was dismissed while on maternity leave for refusing to take a lesser role with a £20,000 pay cut was discriminated against. In Shipp v City Sprint UK Ltd the claimant claimed that when she told her colleagues she was pregnant, the director of operations questioned when she stopped taking contraception and asked how the pregnancy would affect her long-term career goals. The all-male executive team then subjected her to "offensive and humiliating" comments, including the chief executive announcing they should "put a wager" on how much weight she would gain during her pregnancy. During her maternity leave the company restructured, including dismissing several executives. A new chief executive was appointed and the tribunal heard evidence that he excluded Shipp in the restructuring. Shipp then found out from HR that she was no longer on the email distribution lists or on the new organisational chart and was at risk of redundancy. In response, the company sought to offer her a revised job description for the director of marketing role – a lower-level role than marketing director – with a £20,000 pay reduction. She refused the role and was made redundant.
The ET upheld her claims of unfair dismissal and maternity discrimination. The ET found a "stark difference" in the treatment Shipp received compared to her male colleagues, finding that the only explanation was that she was on maternity leave. On the evidence, the tribunal found that the job description for the role she was offered had been copied from other websites and that no such role existed. They also found that the retained executives did not have their salaries reduced in order to stay with the company. Although, a claim of harassment on grounds of pregnancy and maternity cannot be brought under the Equality Act, the ET concluded that Shipp was subjected to a “humiliating and degrading environment” when her colleagues placed a bet on how much weight she would gain during her pregnancy and that this amounted to direct discrimination. Mrs Shipp had managed to fine alternative work so her loss of earnings was limited, however the ET awarded £25,000 plus £5,000 in interest for injury to feelings.
