Last month we reported that compensation in discrimination cases is on the increase. Couple this with the abolition of Tribunal fees in July 2017 and the fact that discrimination claims make up a sizable proportion of Tribunal claims, employers cannot afford to be unprepared to defend such a claim; of course, in an ideal world, employers would avoid such claims altogether!

How much could losing a discrimination claim cost me?

How long is a piece of string? The recent case of BAE (Operations) Limited v Marion Konzczak, concerned an award of damages to Ms Konzcak amounting to the sum of £360,000!

Woah! £360,000 is a lot of damages, what happened to Ms Konzcak?

Well, some may say that this was a fair amount of damages for Ms Konzcak, others may say that that is an astronomical amount “women take things more emotionally than men, who tend to forget things and move on”. This was the comment made to Ms Konzcak by Mr Dent (her manager), and this has led to BAE paying £360,178.60 in damages to Ms Konzcak!

Ms Konzcak started working for BAE in 1998 and was dismissed in 2007. In proceedings, Ms Konzcak alleged that during this time, she was subject to various instances of sex discrimination, disability discrimination and ultimately unfair dismissal. Ms Konzcak’s claim for unfair dismissal and disability discrimination were successful. With regard to Ms Konzcak’s allegations of sexual discrimination, most of them were dismissed, but Mr Dent’s comment, which the Court of Appeal acknowledged as being ‘clumsy’ of him and made in ‘an attempt to express sympathy’, was held to amount to sex discrimination. Mr Dent’s comment was ‘the final straw’ for Ms Konzcak and following this she was signed-off as unfit to work with stress; she never returned to work thereafter.

During lengthy proceedings, it was established that Ms Konzcak had suffered from anxiety and stress before Mr Dent’s comment. BAE argued that Mr Dent’s comment could not have been the sole reason for the psychiatric injury, and that liability should be apportioned to the various factors that resulted in the psychiatric injury. The Court of Appeal rejected BAE’s argument and said that whilst the psychiatric injury may be a culmination of various reasons, in this case it would not disturb the finding that liability was indivisible and the psychiatric injury had only come to life following Mr Dent’s comment.

Could BAE’s liability have been avoided?

It is easy to speculate as to what may have happened had Mr Dent not made that fatal comment, perhaps Ms Konzcak’s pshychiatric illness may never have developed, perhaps she would still work for BAE now? Had Mr Dent perhaps been more alert to the fact that this was sexual discrimination, he would not have made the comment.

Training

Training your staff in equality and diversity and having an effective equal opportunities policy in place may help to prevent your staff making ‘clumsy’ comments which could end up costing you money. Regular and up to date training avoids claims, saves money, motivates employees and ensures your business is a success, providing a real and immediate return on investment.

Regular and up to date training of employees on issues relating to equality and diversity can form part of a defence by an employer against a claim for discrimination on the basis that it has taken all reasonable steps to prevent discrimination taking place. Such reasonable steps would have to have been taken before the discriminatory event, it is therefore necessary that you ensure you:

  • Have an equal opportunities policy and an anti-harassment and bullying policy in place and that you review those policies regularly.
  • Ensure that all employees are aware of the policies and their implications, such awareness could be delivered through training for instance.
  • Training managers and supervisors in equal opportunities and harassment issues.
  • Dealing effectively with complaints and ensuring that disciplinary action is taken where necessary.