Part of a lawyer’s role is to advise clients on the risks associated with particular courses of action or on the value of a potential claim. Very often that involves advising that taking a certain course may be discriminatory or lead to a claim for discrimination. Such advice leads to the inevitable question what might that cost? The trite, but unhelpful, response is that discrimination claims are unlimited and will include an award for injury to feelings.
In the UK, save for injury to feelings awards, the main element of any award is to compensate for financial loss. Most claimants will get another job and so it would not be unusual to limit the potential value of any discrimination award to a maximum of two years’ pay. However, a recent decision against the DWP demonstrates the potential financial consequences of discriminatory treatment.
The claimant was of Nigerian-Welsh origin, female and over 55. Within the first few weeks she complained of bullying, raised a grievance (which was investigated and dismissed), appealed and lodged a Tribunal claim. She was invited to a formal attendance management meeting but did not attend, because she did not receive the letter, and had a meeting by telephone. A further formal attendance management meeting was arranged some time later, but again the invitation letter was not received and the claimant was dismissed. Employment had spanned a total of 18 months.
The Tribunal’s judgement runs to 62 pages. The hearing took place over 6 days with 10 witnesses giving evidence. The claimant’s claims of direct age and race discrimination were upheld, as were her claims of age and race related harassment and victimisation for carrying out protected acts.
The Tribunal made a number of recommendations to obviate the adverse effect of the discriminatory treatment on the claimant. These included
Writing a letter of apology in agreed terms
The Permanent Secretary and Director General of HR being required to read the judgments and then meet with the claimant to discuss failings in policies and procedures, discuss lessons learned and provide a letter of apology having reflected on the judgments
Work with EHRC to review diversity and awareness training
Injury to feelings were assessed at £42,809 including aggravated damages of £7,500 and interest.
The claimant’s personal circumstances were a little unusual. She had had a varied career and been a trainee solicitor, an Executive Director and Company Secretary of a US oil company, left London to live in Wales, renovated a house and then struggled to find a job over the course of three years. The Tribunal accepted that she would have stayed in the role with DWP for 11 years until retirement. Given the difficulties she had experienced finding work before the DWP role and also after the DWP role the Tribunal were willing to find that there was only a small prospect of finding an alternative role.
As a result of its findings the Tribunal found that the claimant would have been promoted once before retirement and would have had a salary of £24,476 a year.
Compensation for immediate and future loss
(25% reduction for prospect of finding new job)
Injury to feelings plus interest
Gross up for tax
All of the above is payable within 14 days of the judgment. After that interest runs at 8%
In addition the Tribunal considered the imposition of a Financial Penalty upon the DWP. This provision is to encourage employers to meet their obligations to employees and to reduce deliberate or repeated breaches of employment law. However, it concluded that such an award was unnecessary.
From an employer’s perspective when assessing what a potential claim might be worth the above is a salutary tale that needs to be borne in mind, particularly if there are allegations of discrimination and there is anything to suggest that an employee may find it difficult to secure future work whether because of age, disability or some other factor.