The EAT has upheld a tribunal’s decision to calculate compensation for direct sexual orientation discrimination and harassment on the basis of career long loss.
THE FACTS
In 2014 a prison officer, Mr Plaistow (P), transferred to HMP Woodhall. He was subjected to harassment related to his sexual orientation or perceived sexual orientation, including physical and verbal abuse and enquiries about his sexuality. This continued until his dismissal in August 2016. He went on to succeed in the employment tribunal for claims of direct sexual orientation, discrimination, harassment and victimisation, amongst other things.
In order to understand the level of compensation awarded the facts are outlined in more detail below. As well as verbal abuse, including an enquiry about his sexuality from his manager (who passed the information that he was bisexual to others), Mr Plaistow was regularly called offensive names including by his manager. In February 2015, he was wrongly given an absence warning (which was found to be an act of direct discrimination), and the abuse intensified. One prison officer pointed his finger into his face and slapped him and, on different occasions, squirted water at him and pushed him into a desk. His work bag was coloured pink and a pink “fairy” cake was smeared inside the bag. His line manager failed to intervene when she saw him abused by other prison officers and herself caused bruises to his arm and told him he was causing “too many problems”. He was told by a Senior Officer that he would put him “on his arse”. Another prison officer screamed at him, grabbed his face and dug her fingernails into his face, and his attempts to pursue grievances were not dealt with. Having raised grievances and written to his MP about his treatment, he was then victimised, with an allegation of gross misconduct pursued against him, which culminated in the termination of his employment with the prison service, which the employment tribunal later found to have been unfair.
The employment tribunal award compensation under various heads, including:
- £41,000 for injury to feelings;
- £15,000 for aggravated damages;
- £8,000 for exemplary damages; and
- financial compensation for career long loss likely to be over £2million.
In determining that career long loss was appropriate the employment tribunal took into account that P suffered from PTSD, depression and symptoms of paranoia, and presented with functional impairments. The medical experts disagreed over about his future prognosis, but the employment tribunal concluded that the injury was likely to be permanent, that it was very unlikely he would be able to return to any work before retirement age, and that there was no reason to think that, without the discriminatory treatment, he would not have continued to be employed by the prison service until his retirement age. The tribunal awarded a 5% discount to reflect this possibility and the possibility that he would find work elsewhere. It also applied a 20% uplift in respect of the failure to follow the ACAS Code in relation to his dismissal.
The prison service’s appeal to the EAT was allowed in part. It rejected the prison service’s challenge to the career-long basis for the award. The employment tribunal had been entitled to find that P’s condition was likely to be life-long. On these facts it was entitled to find that this was one of those rare cases where it would be appropriate to consider P’s future losses on a career-long basis.
The EAT also rejected some aspects of the prison service’s challenge to the 5% discount. There was no finding that Mr Plaistow would be likely to obtain equivalent employment over any period of time. The tribunal was therefore entitled to conclude that the remote prospect of recovery and a return to work could appropriately be reflected in an overall discount.
However, the EAT accepted that the tribunal’s reasoning failed to display a more general consideration of the uncertainties involved in its predicted loss of earnings. There was nothing to suggest that the tribunal had allowed for the more general vicissitudes of life, i.e. the possibility of working life being cut short by reason of early death, disability or other unforeseen circumstances. The tribunal erred in failing to take these uncertainties into account when settling on 5% as a discount and so the appeal would be allowed on this basis.
The EAT also allowed the prison service’s appeal against the 20% uplift under the ACAS Code. It accepted that the tribunal had not demonstrated that it had considered the absolute value of the award it was making. The tribunal plainly had evidence before it that would have given a clear indication of the likely level of award in issue, likely to be over £2 million. Although the EAT did not think that the tribunal lost sight of the size of the award, it was not apparent whether the tribunal had regard to the totality of the award it would be making once the 20% uplift was applied. The EAT accordingly remitted the questions of discount and uplift to the tribunal.
WHAT DOES THIS MEAN FOR EMPLOYERS?
Career long loss awards are relatively rare, as the EAT pointed out. However, where a claimant is not healthy and there is evidence they will not to be able to work again as a result of the employer’s actions compensation on this basis can and will be awarded. This case also provides helpful guidance on discounting considerations, as well as applying the ACAS Code when career long loss is awarded.
As well as the deterrent factor for employers that compensatory awards as high as this one provide, the greatest lesson here for employers is that there were multiple occasions where managers could and should have stepped in to stop the harassment from occurring. They did not and instead were complicit in its escalation. Training to ensure that managers and staff understand how discrimination law works should be regularly given and acted on. Dismissal and grievance processes should also be carried out in a manner whereby discriminatory dismissals can be identified and prevented.
