Wardle v Credit Agricole Corporate and Investment Bank 2011 EWCA Civ545

Mr Wardle was employed by the Bank as Global Head of Exotic Interest Rate Derivatives Risk Management at a salary of £104,000.  He applied for a promotion to Head of Risks Management but failed and a French national was appointed to the post.  The rejection of his application for promotion was held to have been an act of discrimination.  He was subsequently dismissed with effect from 31 July 2008.  Within months he found a new job with the FSA to start on 3 November 2008 at a salary of £105,000 but with a reduced bonus entitlement.   

The tribunal made an award of compensation in respect of the whole period until his likely retirement in 2024.  However, there were various adjustments made to reflect the chance of him leaving the Bank before 2024.  The tribunal also awarded a 50% uplift for the Bank’s failure to follow the statutory procedures.  Both Mr Wardle and the Bank appealed the assessment of damages.   

The EAT held that the loss should not have been considered over the whole of his career.  There was a 70% chance that he would have obtained equivalent employment in banking by the end of 2011.  The Court of Appeal agreed that the cut off for compensation was when there was a better than evens chance of his obtaining an equivalent job, which was in June 2011.  The Court also held that it was wrong to award an uplift of 50% given the amount of compensation awarded.  The tribunal had made a total award of £375,000 and his overall loss was assessed at approximately £180,000 net of tax.  The parties were sent away to recalculate this amount of compensation. Then the Court will re-fix the percentage uplift.  The maximum uplift should be applied very exceptionally and then only in the most serious of cases.  It should not have been applied to the loss for the discriminatory element of the award.   

Key point:  Rarely will dismissals result in permanent career damage which is good news for employers.  The case is useful for a review of the tribunal’s discretion to award an uplift where there has been an unreasonable failure by an employer to comply with the ACAS Code of Practice.