It’s cases like Secretary of State for Justice v Plaistow that make life as an employment lawyer challenging. Clients read about an employee being awarded 28 years’ loss of earnings in the employment tribunal and assume that’s par for the course. Managing expectations can be difficult.
There are two main reasons why the average tribunal award is closer to five figures than seven.
Firstly, unless the employee has a certain type of case such as discrimination or whistleblowing, compensation is limited to a year’s pay or £89,493, whatever is the lower. The average unfair dismissal award last year was just £10,812.
Secondly, even if this cap on compensation doesn’t apply, the tribunal rarely awards more than a few years’ loss of earnings. An former employee who is bringing a claim can’t sit around waiting for the money to come in. They have to take steps to get another job and mitigate their loss. The tribunal will consider the employee’s skills and qualifications, look at the local labour market and consider when he or she could reasonably be expected to get another job at a similar salary. Because of the length of time it now takes for tribunal cases to get to a final hearing, many claimants have already secured another job by the time their claim is decided.
Sure, there are cases where employees recover over a million pounds in compensation, but they are invariably high earning employees with generous bonuses. If your annual salary is £250K plus a bonus, a couple of years’ losses soon mounts up. An employee on £30,000 a year is very unlikely to recover such a large sum. In the 12 months from April 2019 to March 2020, the highest sum awarded in an employment tribunal claim was £266,000 for a disability discrimination claim.
Which brings us to this case. A former prison officer on course to recover £2M compensation. Why so much money? It’s because the individual was treated so badly during his employment that the resulting injury is likely to be permanent. There were numerous examples of direct sexual orientation discrimination, harassment and victimisation. Among other things, the claimant was regularly called “poof”, “gay”, and “vermin” and subjected to physical abuse. One prison officer pointed his finger into the claimant’s face and slapped him, another officer screamed at the claimant, grabbed his face and dug her fingernails into his face. The claimant’s work bag was coloured pink and a pink “fairy” cake was smeared inside the bag. His grievances were not investigated and he was eventually unfairly dismissed.
As a result of his treatment, the employee suffered from post-traumatic stress disorder, depression and symptoms of paranoia, as well as other functional impairments. Based on medical evidence, the tribunal concluded that his conditions were likely to be life-long and so it was very unlikely he would be able to return to any work before retirement age. It was for this reason that the tribunal took the very rare decision to award compensation on a career-long basis. As the claimant was only 40 at the time of his dismissal and had planned to work until retirement age of 68, this was a significant sum.
It’s good to know that when an employee has been treated in this appalling way, the employment tribunal can step in and ensure they are looked after financially. This is a very rare case but one employers should bear in mind when deciding what is and isn’t acceptable in the workplace.
“this is one of those rare cases where it is appropriate to consider the claimant’s future losses on the basis of a career long basis. The claimant would have remained in work up to retirement age”