The EAT has upheld an ET’s decision to award career-long losses to an employee unable to work again due to treatment suffered by their employer.
Background
Mr Plaistow worked as a prison officer from 2003 until he was dismissed for gross misconduct in August 2016.
In 2014, Mr Plaistow, at his request, transferred from HMP Feltham to HMP Woodhill. At HMP Woodhill, he suffered harassment, including physical and verbal abuse, due to his actual or perceived sexual orientation.
Mr Plaistow requested a further transfer. He then raised a grievance in relation to the discrimination suffered at HMP Woodhill; HMPS failed to investigate the grievance. In August 2016, Mr Plaistow was dismissed in relation to allegations of gross misconduct.
The ET decision
Mr Plaistow brought several Employment Tribunal claims, including direct sexual orientation discrimination, harassment and victimisation, and was successful after a 27-day tribunal hearing.
The ET awarded Mr Plaistow:
- £41,000 for injury to feelings – a non-financial- loss award in relation to the level of discrimination suffered by the Claimant; an award related to the discriminatory treatment suffered;
- £15,000 for aggravated damages – available in cases where a business acts in a high-handed, malicious, insulting or oppressive manner towards a claimant;
- £8,000 for exemplary damages – an award designed to punish public sector businesses (like HMPS) for oppressive, arbitrary or unconstitutional action towards a claimant; and
- career-long future losses, yet to be determined.
In dealing with future losses, the parties’ medical experts agreed that, because of the treatment suffered, Mr Plaistow suffered PTSD, depression, symptoms of paranoia and functional impairments. Whilst the parties’ experts disagreed on whether Mr Plaistow would be able to carry out work before retirement, the ET sided with the Claimant and considered that he would not be able to work again. The ET considered a small chance that the Claimant would have left his role earlier than retirement, so applied a 5% deduction to the potential losses.
The ET also decided that HMPS unreasonably failed to follow the ACAS Code of Practice when managing Mr Plaistow’s grievance and disciplinary process and awarded Mr Plaistow a 20% uplift on any award.
The EAT decision
HMPS appealed to the EAT. It challenged, among other things, the career-long basis for the award and the 20% uplift (including the Employment Tribunal) had failed to ensure that any potential award was proportionate in all the circumstances.
The EAT agreed with the ET, recognising that this was a rare case in which career-long losses were appropriate. However, it did not agree that applying only a 5% reduction to future losses and the 20% uplift was unreasonable and accepted that the ET had failed to consider whether the award was proportionate in all the circumstances.
Comment
Whilst career-long losses are rarely awarded in Employment Tribunal claims, this case is a poignant reminder that in cases where an employee is treated so badly that they are deemed no longer fit to work for the remainder of the career, employers will be held accountable.
Employers should ensure that they have robust and thorough processes for dealing with allegations of discrimination and should ensure they recognise the ACAS code of practice when managing grievances and disciplinary issues.
Here to help
If you have any questions or would like more information regarding career-long losses, please get in touch with our Employment Team on 0161 941 4000 or you can email the Employment Team.