Aug 2017
Author: David Seals
In BAE Systems (Operations) Limited –v- Konczak ("K") the Court of Appeal rejected the employer’s argument that an award of compensation of £360,178 in a discrimination claim was excessive.
K was a secretary earning around £22,000 per annum for BAE. She was employed by the company for 9 years before she was dismissed in 2007. K had been employed as part of a team working with the Royal Saudi Air Force (RSAF). Following some changes in personnel, K claimed she was subjected to bullying and harassment. In January 2005 she was moved to the commercial team at a different location. In March 2006, K’s line manager, Mr Dent, suggested she returned to the RSAF team in a different job. Given her previous complaints when she worked in that team she felt that she was not being taken seriously. In April 2006, following a meeting with Mr Dent at which K broke down in tears, he said to her that women took things more emotionally than men while men tended to forget things and move on.
K was signed off with work-related stress and never returned to work. After she was dismissed she brought various claims of sex and disability discrimination and unfair dismissal in the Employment Tribunal. Her sex discrimination claims related to various incidents which were all rejected except the comment referred to above.
The litigation in this matter has, to date, lasted over 10 years. Although K succeeded on liability at the first hearing in 2008, at the remedy hearing in 2011, the Tribunal awarded a limited sum of compensation as it found that K had unreasonably rejected an offer of settlement by BAE. That decision was quashed on appeal and the case was sent to a new Tribunal which assessed compensation (in 2013) at £318,629. In reaching this conclusion the Tribunal accepted medical evidence that Mr Dent’s comments had caused K to suffer psychiatric injury which would incapacitate her for many years.
BAE’s appeal to the Employment Appeal Tribunal against the Employment Tribunal’s decision failed. It appealed to the Court of Appeal arguing that the award failed to take account of either:
(1) The possibility that other factors than Mr Dent’s comments had contributed to K’s psychiatric injury; and/or
(2) The possibility that K’s psychiatric injury might have occurred in future in any event.
The Court held that the Tribunal had been entitled to find that Mr Dent’s comments had been the final straw that pushed K over the edge into mental illness. Furthermore, given that BAE had not previously argued before the Tribunal that K might have developed mental illness in any event they were too late to raise it on appeal especially given the long history of the litigation.
What does this mean for you?
Because K succeeded on her sex discrimination complaint it allowed her to claim damages for injury to feelings and psychiatric injury (neither type of damages are possible under an unfair dismissal claim). However, the sum involved is exceptional for an employee earning £22,000 per annum. Without wanting to state the obvious, the case is a stark warning to employers regarding the potential consequences of discriminatory behaviour in the work place. Employers have a possible defence to claims like this where they can show they took reasonable steps to prevent discrimination occurring at work. To have the best possible chance of arguing this employers should ensure that staff are well trained and managed and that adequate written policies are in place promoting work place equality.
If you have any queries regarding this or any other employment issue please contact David Seals on 01306 502218 or at [email protected].
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