In Wardle v Credit Agricole Corporate and Investment Bank the EAT has confirmed that awards for discriminatory dismissals can include compensation for career-long loss. This is a timely reminder to employers that the approach to calculating awards where discrimination is established is different to that in unfair dismissal claims where there is no discriminatory aspect.
Mr Wardle worked for Credit Agricole in its London office. In 2008 he applied for promotion but CA promoted a French employee instead. He lodged a claim of race discrimination, in response to which the bank summarily dismissed him, prompting a further claim arising from his dismissal. At the tribunal, Mr Wardle's claim of race discrimination was upheld and his dismissal was found to be both unfair and an act of victimisation. In addition, the Tribunal held that the bank had failed to follow the statutory dismissal procedures (which applied at the time of his dismissal).
The Tribunal assessed compensation initially at £180,000. It then applied the maximum statutory uplift of 50% for the bank's failure to comply with the statutory procedures, bringing the total compensation awarded to £270,000. Both Mr Wardle and the bank appealed against the level of the award.
In assessing loss, the tribunal had included an element of loss arising for the period up to 2024, at which point Mr Wardle would be 60 years old. This was the latest date that the tribunal considered Mr Wardle would work for the bank, if he did not leave sooner.
On appeal, the bank claimed that the tribunal should not have awarded any element for career long losses, or that it should have applied a greater reduction to reflect the percentage chances that Mr Wardle would have left their employment in due course. The EAT, however, confirmed that compensation for career-long loss was appropriate and upheld the level of reduction which the tribunal had ultimately applied. It also ruled, however, that the 50% uplift which gave rise to an increase of £90,000, was disproportionate to the bank's breach. The uplift was therefore reduced to 10%.
Impact on employers
- Unlike compensation for most unfair dismissals, compensation for discriminatory dismissals is uncapped.
- Additionally, there is a different test for the calculation of the compensation. The aim is to put the employee into the position they would have been in had no discrimination taken place. That is not necessarily the same as asking what would happen to the particular employment relationship had there been no discrimination. An employee's prospects of finding a job when they are forced onto the labour market by a dismissal may be reduced because it is easier to find a job when in employment and because they may be stigmatised in the market for having brought legal proceedings. This has to be appropriately reflected in the award of compensation.
- Although the statutory dismissal procedures have now been abolished, tribunals are still entitled to make uplifts in compensation of up to 25% where the ACAS Code has not been followed. This can give rise to sizeable penalties (ultimately £18,000 in this case).