A hospital doctor has been awarded a record £4.5m for sex and race discrimination by an employment tribunal. It is an enormous amount of money but, according to the tribunal report, the employer’s behaviour was enormously bad. So bad that the HR Director and Medical Director were, together with the Trust, held jointly liable for the award.
However, it brought to mind a similar case I came across a couple of years ago. Again, the employer had behaved badly. It wasn’t discrimination, just plain old-fashioned bullying culminating in a political knifing during a corporate restructure. The employee on the receiving end, a relatively senior long-serving manager, won his tribunal case. Like Eva Michalak, he was in his 50s and would never work again in such a senior capacity. He was awarded around £65,000, which was the maximum the tribunal was able to give him for unfair dismissal. It was barely half a year’s salary.
It doesn’t sound fair does it? Employers can be punished for behaving badly but the reason behind their behaviour can lead to radically different financial penalties. For illegal discrimination, the sky is the limit, in theory. For any other reason, such as personality clash, bullying or a good old corporate shafting, the payout is capped at around £80k.
Of course, as Mrs Markelham notes, huge discrimination payouts are rare and employers are more likely to lose an unfair dismissal case than a discrimination claim. But, because of the publicity, around them, discrimination claims scare the hell out of managers. A grievance or performance management issue with even the possibility of turning into a claim for racial or sex discrimination will have most managers running for cover. Even the most confident organisations, with the best HR and legal support, go into a tizzy when faced with a discrimination claim.
The government is unlikely to do much to equalise the penalties for unfair dismissal and discrimination. If anything, it is weakening unfair dismissal protection even further which will only make people look for ways of claiming discrimination. These days, a lawyer advising the chap in the case I described above would probably suggest shoving in an age discrimination claim for good measure.
Massive payouts like the one awarded to Eva Michalak are rare but the publicity around them scares managers and emboldens those employees who fancy having a go at their employers. If the unfair dismissal route is gradually choked off, more people may try their luck with a discrimination claim. You might not get £4.5m but you’ll sure as hell put the wind up your boss.