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Archive for the ‘Case Studies’ Category

Recent Awards in Discrimination Cases

Those of us who provide legal advice in Bristol, and particularly those who regard themselves as expert in supplying advice on employment law, should be aware of the following three recent decisions:

Michalak v The Mid Yorkshire Hospitals NHS Trust and Others (2012) Eq Opp Rev 28:221

Facts M, a woman of Polish origin, was employed by MY as a consultant physician. Soon after starting employment, she took maternity leave. She was subjected to disciplinary proceedings which resulted in her dismissal. She complained of unfair dismissal, race and sex discrimination and victimisation.

M’s maternity leave started a campaign by senior persons in the hospital to get rid of her. A number of secret meetings were held, with the aim of creating a strategy to dismiss M. References were made to M’s Polish origins and cultural issues. M was not informed of the meetings.

During M’s absence, colleagues were paid extra to cover her absence. M complained that by excluding her from these payments, she was being treated less favourably because she had been on maternity leave.

Senior managers and clinicians decided on a strategy to pursue investigations to try and identify misconduct by M. She was suspended from work in January 2006 following complaints by staff.

The tribunal found that M had been subjected to a campaign of harassment, was subjected to an improperly long suspension, and was dismissed for various acts of misconduct, none of which were substantiated.

There had been repeated references to M’s ethnic origins and the cultural issues which might arise. Although about half of the respondent’s consultant body were from ethnic minority backgrounds, the secret meetings and disciplinary panels comprised all British white people. There was direct race discrimination: the respondent failed to show that its actions were untainted by race discrimination.

Three of the fourteen individually named respondents were also found liable for sex and race discrimination.

Compensation award M was awarded £4,452, 206 compensation.

M suffered from chronic post-traumatic stress disorder, depression and anxiety. It was unlikely that she would be able to return to work as a consultant. Her symptoms had persisted for more than two years and she had undergone an enduring personality change.

Injury to feelings: £30,000: upper end of top Vento band.

Personal injury: psychiatric illness: £56,000.

Exemplary damages: £4000: Oppressive, arbitrary or unconstitutional action by the employer.

Actual loss of earnings: from date of dismissal: £168, 234.

Cost of care: past care: £43,207. Three years’ future care: £31,122.

Future loss of earnings: Calculated retirement age of 68: average net income over 14 years: £941, 802.

Pension loss: £666,260.

Medical treatment: £50,000.

Loss of benefit of life insurance: £15,000.

Uplift: The old statutory grievance procedure applied: 15% uplift: grave and contumelious failure to comply.

(Total award grossed up for tax)

Liability joint and several between all relevant respondents.

Browne v Central Manchester University NHS Foundation Trust (2012) Eq Opp Rev 31:221

Facts B was employed by CM as divisional director of the Clinical and Scientific Services (CCS) Division in March 2002. He was the only black divisional director. In 2007 concerns arose about his performance. The NHS procedure to deal with this was not followed. B received a letter telling him that his job was at risk. B became ill with stress and was off work. He was suspended and dismissed after investigation and disciplinary hearings. B complained of unfair dismissal and race discrimination.

The tribunal found the following:
* There had been a clear breach of CM’s capability porcedures by notifying B that his job was at risk before formal procedures had been invoked.

  • The investigation of B’s grievance had been cursory.
  • B was treated less favourably than other divisional directors with whom problems had arisen.
  • B had been suspended without proper procedures being followed.
  • Statistics had been presented to B which “showed a pattern of black employees being more likely to be subject to dismissal than white employees”.

Compensation award

Injury to feelings: lower end of top Vento band: £20,000.

Aggravated damages: £5000: no apology: B distressed at hearing when accused of making spurious and opportunistic complaints.

Personal injury: moderately severe mental illness: £13,000.

Actual loss of earnings: from date of dismissal to date of hearing: £172,114.

Future loss of earnings: to age of 65: £101,140.

Pension loss: £244,219.

Grossing up for tax: Total net award of £565,623 grossed up to £933, 115.

Burke v Clinton Cards plc & Walker (2012) Eq Opp Rev 32:221

Facts Mrs B was employed by CC as an area sales manager. She was diagnosed as suffering from breast cancer. Her employers made adjustments by reducing the number of stores for which she was responsible. W took over as a new regional manager. He increased Mrs B’s workload and criticised her performance. He did not take account of the effect of her medical treatment on her work. Mrs B resigned and complained of constructive dismissal and disability discrimination.

The complaints were upheld.

Compensation award

Actual loss of earnings: £24,838.

Future loss of earnings: three years: £42,371. Note: the tribunal would have favourably considered a claim for career-long loss of earnings, but this had not been included in the schedule of loss.

Pension loss: £6,698.

Loss of company car: £10,134.

Injury to feelings: £14,000: cumulatively caused distress: upper end of middle Vento band.


Recent Health and Safety Fines and Prosecutions

Anyone providing advice on employment law in general, and health and safety law in particular, needs to be aware of the following recent prosecutions:

Deaths of mineworkers: £1.2 million fines

UK Coal Mining has been fined following the deaths of four mineworkers.

Significant points of the case

The deaths were as follows:

  • In June 2006 Trevor Steeples was killed at Daw Mill colliery near Coventry when he was exposed to high levels of methane.
  • In August 2008 Paul Hunt was killed at the same colliery when he fell from an inadequately maintained underground transporter into the path of a moving train.
  • In January 2007 Anthony Garriagn was killed at the same colliery as he worked with colleagues to install rockbolts to keep a tunnel support wall in position. he was crushed to death when more than 100 tonnes of inadequately supported coal and stone fell on him. The tunnel had previously collapsed and UK Coal should have supplied a safer system of support.
  • In November 2007 Paul Milner died at Welback colliery in Nottinghamshire. he was installing extra roof supports in order to salvage equipment from a coal face which had ceased production. Milner was crushed to death under 90 tonnes of rock when the roof collapsed. A suitable code of practice had been agreed to provide a safe system of work. This code was not properly implemented by UK Coal.

UK Coal Mining wads fined £112,500 plus £187,500 costs in respect of each death for breaches of sections 2 and 3 of the Health and Safety at Work, etc., Act 1974 (HSW Act), for failing to ensure the health and safety of employees and non-employees.

Sheffield Crown Court, December 2011.

Forklift truck death: £100,000 fines

Millenium Rubber International Ltd, a compnay which manufactures rubber surfaces for children’s playgrounds and  running tracks, and United Crane Services Ltd have been fined after a worker was killed when he fell from the forks of a forklift truck.

Significant points of the case

  • In June 2006 Martin Denton was working at Millenium Rubber’s factory in Macclesfield.
  • He was being lifted in a stillage (a metal container) when it slipped off the forks of a forklift truck. He fell four metres onto a concrete floor and suffered fatal head injuries.
  • United Crane Services had been contracted to repair an overhead crane at the factory. It allowed Denton to be lifted in a container which was not designed to carry people.
  • It was standard practice at the factory to use pallets and containers on forklift trucks to lift workers. Neither containers nor pallets were safe nor designed for that purpose.

Millenium Rubber was fined £90,000 plus £21,000 costs for a breach of section 2, HSW Act, for failing to ensure the health and safety of employees.

United Crane Services was fined £10,000 plus £5000 costs under section 3, HSW Act, for failing to ensure the health and safety of non-employees.

Chester Crown Court, December 2011.


Redundancy

The legal meaning of redundancy is far more complex than the popular view. The general principle is that redundancies arise when an employer’s requirement for work of a particular kind done by an employee has ceased or diminished, temporarily or permanently. It is often unclear whether an employer’s action in altering work arrangements amounts to redundancy or not.

In a recent case, H, who was employed as a supervisor, was given written warnings about her performance. She told one of her superiors that she was pregnant.

The employers decided that redundancies were needed because of the company’s business position. It selected employees for redundancies on the basis of scoring against a matrix scheme.

The person responsible for scoring knew that H was pregnant. H scored lowest and was selected for redundancy. The next lowest scorer was a trainee who had been supervised by H.

H complained of sex discrimination. The employment tribunal upheld her complaint and found that, if she had not been pregnant, the trainee would have been selected for redundancy. It made the following points:

• There had been considerable scope for subjective views and opinions to have influenced the scoring.
• The reason for H’s selection for dismissal was her pregnancy.
• Her selection for dismissal, and the dismissal itself, was sex discrimination and the dismissal had been unfair.
• The employer had acted in a high-handed and malicious way in deliberately scoring H lower than the trainee.
• H should be awarded a total of £16,000 compensation.