In recent years the Equal Opportunities Review (the "EOR") have produced an extremely interesting annual survey on the compensation awards made in discrimination cases. The statistics for 2012 have recently been published in 2 parts by the EOR and, with their kind permission, I have set out some of the main points below.
The statistics are based on 422 cases either filed by the Employment Tribunal Service in Bury St Edmunds or sent to the EOR by individual lawyers.
The total compensation awarded in the 422 cases was £5,268,597. Discrimination awards are uncapped and the highest award made was £235,825 in the disability discrimination case of Wilebore v Cable & Wireless Worldwide Services Ltd, in which reasonable adjustments were not made for an employee who was returning to work after having treatment for cancer.
The only other award in excess of £100,000 was for £136,592 in an age discrimination case - Dixon v The Croglin Estate Co Limited.
Breakdown of Awards
Of the total amount awarded (£5,268,597), 47% is attributable to awards made for injury to feelings (£2,469,566) with the rest made up of, predominantly, financial loss (i.e. loss of earnings).
The highest awards made for the various categories of discrimination were as follows:-
Click here to view table.
Protected Characteristic Highest Award
I have set out below the median awards for the various strands of discrimination with the 2011 and 2010 figures for comparison purposes.
Click here to view table.
An Employment Tribunal can make recommendations as to the steps that the respondent should take to reduce the adverse effect of the discrimination on the claimant. The Tribunal can also make recommendations for the benefit of the wider workforce and not just the particular claimant. In 2012 the Employment Tribunal made recommendations in 30 cases. Of these, 19 included wider recommendations to promote equality in the workplace. The most common wider recommendation was for training to be implemented either on equality or diversity.
It is worth noting that the Government is intending to remove the power of Employment Tribunals to make these wider recommendations which, in my view, is regrettable and appears to be something of a retrograde step.
It should be borne in mind that the statistics relate to a selection of cases which were decided by the Employment Tribunal and do not take into account the many claims that do not reach a full hearing and which, instead, conclude by way of agreed settlement for undisclosed sums.
The Wilebore case is an important reminder that unlawful discrimination awards are uncapped and can be extremely costly to an organisation.
Two fundamental points that will generally be explored in cross-examination in discrimination cases are:-
- whether there was an equal opportunities policy in place and the extent to which the content was well known to the employees;
- the extent to which managers and employees were given training in respect of the content of the policy.
Very often employers will be able to point to a policy document but employers frequently struggle to demonstrate that adequate training was given in terms of that policy. This can result in claims being lost and significant awards being made against employers.
It is essential that employers take the necessary steps, including the provision of appropriate training for employees and managers, to ensure that they do all that they can to reduce the risks of instances of discrimination arising and of a successful claim being made.
The EOR's report also contains some very interesting statistics on the "injury to feelings" element of discrimination awards and I will do a further blog in the coming days on this aspect.