International Employment Lawyer
A London council must pay £4.6m to a former employee subjected to harassment and disability discrimination while on medical leave. The award, believed to be the highest ever against a public body, is a reminder for employers to beware of career-long loss claims and to avoid misleading the employment tribunal.
“Very high financial awards are extremely rare and are usually only awarded for career-long loss where an individual will never work again as a result of discriminatory conduct of the employer,” explains Caroline Baker.
“This will either be because the person has a disability or they claim ‘stigma damages’ – ie, that the stigma of their claim in a small-knit industry means that they have become in effect unemployable.”
However, Baker notes that this case was particularly unusual as exemplary damages were reportedly awarded to the claimant.
“These are damages awarded to punish the employer, including in circumstances where the conduct is considered [to be] ‘oppressive, arbitrary or unconstitutional action by servants of the government’,” she explains.
Baker says the tribunal would have looked at how much the claimant earned at the time of her dismissal, as well as future earning potential, and the fact that she may have been in line for a generous public-sector pension. All this would add significant value to her case, she adds.
“In career-long loss cases such as this one, the parties argue over the hypothetical scenario of what would have happened had the employee not been unlawfully terminated,” she says.
“Claimants in such cases will argue that they would have received promotions with further increases in salary and that they would have continued to work until a relatively old age.”
On the other hand, employers will argue the claimant would have been dismissed for a lawful reason within a relatively short period or that their chances of a promotion were slim. Arguing over a hypothetical future situation is extremely challenging, notes Baker.
“The main takeaway for employers in a case like this is to pause and reflect before any dismissal involving a disabled employee,” she adds.
“Where there is a potential for career-long loss being claimed, any dismissal needs to be well thought through. Ensuring that processes are followed in high-risk cases is an easy way for employers to mitigate the risk of such high-value awards being made against them.”
