Costs mount up as a tribunal takes culminative effect of discrimination on
individual employee into account
There has been some debate recently as to whether comments made by Lord
Hoffman in the case of Johnson v Unisys, 2001, IRLR 279 could open the
floodgates for significant increases in the level of awards in unfair dismissal
cases.
Last month, however, a decision by the London South Tribunal in a race
discrimination claim has provided a timely reminder that while compensation
levels may increase for unfair dismissal claims there are still limits – unlike
compensation for acts of unlawful discrimination.
In Fasipe v London Fire and Civil Defence Authority, unreported,
ET/2304129-98, 22/05/01, the applicant, a black Afro-Caribbean was employed as
a VDU operator/computer programmer from December 1997 to July 1998. He later
complained of race discrimination and victimisation.
Considerable injury
The tribunal found there had been a number of different incidents of
unlawful racial discrimination. In particular it identified that towards the
end of his contract, a white person was offered a further temporary position
rather than him; a white person was shortlisted for interview again in
preference to him, two managers had tossed work to him to avoid having any
physical contact and a senior manager had displayed resentment towards him.
It was found that the applicant had suffered considerable injury to feelings
from each of these acts and that taking into account all the incidents he was
entitled to a global award of damages in the amount of £25,000.
In addition he was diagnosed as suffering from a condition very similar to
that of post-traumatic stress disorder. This had severely hampered his ability
to cope with life and work generally and had impaired his relationships with
close family and friends.
The tribunal found that this amounted to severe psychiatric damage and
taking into account judicial guidelines on compensation in personal injury
claims, awarded him £40,000. His absence from the job market would result in a
loss of skills and expertise so hampering any prospects for career advancement.
For the continuing loss of opportunity he was awarded £30,000.
In fact, the total compensation once interest, past and future losses had
been added amounted to a staggering £245,237.13 – one of the highest
compensation awards ever made in a race discrimination claim. Why so much? The
acts complained of were not extreme in their nature, there was no racial abuse
or assault. But in all discrimination claims compensation is calculated on the
basis of the effect upon the particular employee and not the act of
discrimination itself.
The employer has to "take the victim as he finds him". If the
discrimination has had the most adverse effect, a complete nervous breakdown,
for example, it will not matter to what degree it would have affected another
employee – the employer will still have to compensate to the full extent of the
injury suffered.
Clearly employers cannot afford to allow discrimination in the workplace,
but what can they do to protect themselves?
Equal opportunities
The first step they should take is the introduction of an equal
opportunities policy. Merely preparing one will be insufficient it should be
effectively communicated to all staff and actively enforced. Training and
management awareness of discriminatory issues should be reviewed on a regular
basis.
Support should be given to employees in harassment or discrimination cases
which should be promptly investigated and followed up with
remedial/disciplinary action where appropriate. Only by taking this action will
an employer be able to defend such claims and reduce the likelihood of them
arising in the first place.
By Sue Nickson, a partner and
national head of employment law at Hammond Suddards Edge
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