• Robert Spicer

Recent awards in discrimination cases

Those of us who provide legal advice in Bristol, and particularly those who regard themselves as expert in supplying advice on employment law, should be aware of the following three recent decisions:

Michalak v The Mid Yorkshire Hospitals NHS Trust and Others (2012) Eq Opp Rev 28:221

Facts M, a woman of Polish origin, was employed by MY as a consultant physician. Soon after starting employment, she took maternity leave. She was subjected to disciplinary proceedings which resulted in her dismissal. She complained of unfair dismissal, race and sex discrimination and victimisation.

M’s maternity leave started a campaign by senior persons in the hospital to get rid of her. A number of secret meetings were held, with the aim of creating a strategy to dismiss M. References were made to M’s Polish origins and cultural issues. M was not informed of the meetings.

During M’s absence, colleagues were paid extra to cover her absence. M complained that by excluding her from these payments, she was being treated less favourably because she had been on maternity leave.

Senior managers and clinicians decided on a strategy to pursue investigations to try and identify misconduct by M. She was suspended from work in January 2006 following complaints by staff.

The tribunal found that M had been subjected to a campaign of harassment, was subjected to an improperly long suspension, and was dismissed for various acts of misconduct, none of which were substantiated.

There had been repeated references to M’s ethnic origins and the cultural issues which might arise. Although about half of the respondent’s consultant body were from ethnic minority backgrounds, the secret meetings and disciplinary panels comprised all British white people. There was direct race discrimination: the respondent failed to show that its actions were untainted by race discrimination.

Three of the fourteen individually named respondents were also found liable for sex and race discrimination.

Compensation award M was awarded £4,452, 206 compensation.

M suffered from chronic post-traumatic stress disorder, depression and anxiety. It was unlikely that she would be able to return to work as a consultant. Her symptoms had persisted for more than two years and she had undergone an enduring personality change.

Injury to feelings: £30,000: upper end of top Vento band.

Personal injury: psychiatric illness: £56,000.

Exemplary damages: £4000: Oppressive, arbitrary or unconstitutional action by the employer.

Actual loss of earnings: from date of dismissal: £168, 234.

Cost of care: past care: £43,207. Three years’ future care: £31,122.

Future loss of earnings: Calculated retirement age of 68: average net income over 14 years: £941, 802.

Pension loss: £666,260.

Medical treatment: £50,000.

Loss of benefit of life insurance: £15,000.

Uplift: The old statutory grievance procedure applied: 15% uplift: grave and contumelious failure to comply.

(Total award grossed up for tax)

Liability joint and several between all relevant respondents.

Browne v Central Manchester University NHS Foundation Trust (2012) Eq Opp Rev 31:221

Facts B was employed by CM as divisional director of the Clinical and Scientific Services (CCS) Division in March 2002. He was the only black divisional director. In 2007 concerns arose about his performance. The NHS procedure to deal with this was not followed. B received a letter telling him that his job was at risk. B became ill with stress and was off work. He was suspended and dismissed after investigation and disciplinary hearings. B complained of unfair dismissal and race discrimination.

The tribunal found the following: * There had been a clear breach of CM’s capability porcedures by notifying B that his job was at risk before formal procedures had been invoked.

  • The investigation of B’s grievance had been cursory.

  • B was treated less favourably than other divisional directors with whom problems had arisen.

  • B had been suspended without proper procedures being followed.

  • Statistics had been presented to B which “showed a pattern of black employees being more likely to be subject to dismissal than white employees”.

Compensation award

Injury to feelings: lower end of top Vento band: £20,000.

Aggravated damages: £5000: no apology: B distressed at hearing when accused of making spurious and opportunistic complaints.

Personal injury: moderately severe mental illness: £13,000.

Actual loss of earnings: from date of dismissal to date of hearing: £172,114.

Future loss of earnings: to age of 65: £101,140.

Pension loss: £244,219.

Grossing up for tax: Total net award of £565,623 grossed up to £933, 115.

Burke v Clinton Cards plc & Walker (2012) Eq Opp Rev 32:221

Facts Mrs B was employed by CC as an area sales manager. She was diagnosed as suffering from breast cancer. Her employers made adjustments by reducing the number of stores for which she was responsible. W took over as a new regional manager. He increased Mrs B’s workload and criticised her performance. He did not take account of the effect of her medical treatment on her work. Mrs B resigned and complained of constructive dismissal and disability discrimination.

The complaints were upheld.

Compensation award

Actual loss of earnings: £24,838.

Future loss of earnings: three years: £42,371. Note: the tribunal would have favourably considered a claim for career-long loss of earnings, but this had not been included in the schedule of loss.

Pension loss: £6,698.

Loss of company car: £10,134.

Injury to feelings: £14,000: cumulatively caused distress: upper end of middle Vento band.

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