Discrimination compensation assessed on basis of career-long loss


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The Employment Appeal Tribunal (EAT) has upheld an employment tribunal's decision to calculate compensation for direct sexual orientation discrimination and harassment on the basis of career-long loss in Secretary of State for Justice v Plaistow.

Mr Plaistow began working as a prison officer in 2003 at HMP Feltham.  In 2014 he transferred to HMP Woodhill at his request and, soon after this was subjected to harassment relating to his sexual orientation or perceived sexual orientation, including physical and verbal abuse about his sexuality.  In October 2014 he asked for help to transfer to a different prison.  When he raised a grievance in October 2015 it was not investigated.  He raised further grievances (also not dealt with) and, when he wrote to his MP about his treatment, was victimised and an allegation of gross misconduct was pursued against him.  His employment was terminated in August 2016, when he was 38.  He brought a number of tribunal claims, including direct sexual orientation discrimination, harassment and victimisation.

Mr Plaistow's claims succeeded and the tribunal calculated his financial loss on a career-long basis.  It took the medical evidence, agreed by the experts for both parties, that Mr Plaistow had suffered post-traumatic stress disorder, depression and symptoms of paranoia and presented with various functional impairments (finding it difficult to leave his house, attend to his personal care or interact with members of the public).  Mr Plaistow's expert took the view that his condition would be life-long, but the prison service's expert considered that there was insufficient evidence to conclude that his condition was permanent.  The tribunal concluded that the injury was likely to be permanent and that it was very unlikely that he would be able to return to any work before retirement age (68).  It accepted his evidence that he had intended to remain in employment up to this age and accepted that he would probably have continued to provide a good service.

The EAT rejected the prison service's challenge to the career-long basis for the award, holding that the tribunal had been entitled to find that Mr Plaistow's conditions were likely to be life-long.  The tribunal had concluded that it was very unlikely that he would ever be able to return to any work before his retirement age.  The EAT held that the tribunal was entitled to find that this was one of those rare cases where it would be appropriate to consider the claimant's future losses on a career-long basis.

Take note:  It's worth bearing in mind that awards for career-long loss are very unusual, but it was held in Plaistow that the claimant was unlikely to return to work before his retirement age, such was the extent of the abuse he had suffered.  The Prison Service also appealed against an uplift of 20% for its failure to comply with the Acas Code.  As the EAT was not confident that the tribunal had considered the overall total of the sum awarded when determining the percentage uplift it remitted the question of the uplift back to the tribunal. 

Employers should remember that, as there is no cap on the amount which can be awarded for discrimination, a failure to follow the Acas Code when an employee raises a grievance about discrimination and is ultimately dismissed can potentially lead to very costly awards.

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