Firms must protect staff from discrimination

As we brace ourselves for the next onslaught of financial unease in 2012, a recent record-breaking tribunal award for discrimination serves as a timely reminder of the responsibility businesses have to protect employees from discrimination. 

Polish-born consultant, Dr Eva Michalak, won her claim against the Mid Yorkshire NHS Trust for race and sex discrimination and has been awarded £4.5 million in damages. Three employees (the Trust's medical director, consultant physician and human resources manager) were also made jointly and severally liable for the full amount of the award. The award is thought to be the largest ordered in the UK in a discrimination case (although the size is largely due to the tribunal "grossing up" the award to reflect the amount of tax she will have to pay, almost doubling the total). The Judgment itself was also noteworthy for being the first one we have seen which directly quotes John Lennon (in case this inspires you to wade into the 43-page extravaganza of calculations!). 

Michalak had taken maternity leave in 2002. Leeds Tribunal heard evidence of "secret meetings" held even before Michalak went on maternity leave, the purpose of which were to devise a way of removing her from the business, as well as repeated references by colleagues to her Polish origin connected to queries over her competency. On returning to work, Michalak requested that her pay be increased to match those of her equal colleagues. This was refused and, after alleging sex discrimination internally, Michalak became unpopular with the Trust eliciting four years worth of "deliberate falsehoods" put forward as complaints against her by colleagues as part of a "concerted campaign" to bring her employment to an end. She was then suspended for 17 months before finally being dismissed in 2008. The Tribunal delivered a damning judgment saying it was "outraged" by the way senior staff at the Trust had behaved towards Michalak. 

The huge sums awarded here were largely owing to Michalak's high salary and pension as well as the unusually "chronic and disabling" post-traumatic stress disorder, depression and anxiety that the discrimination was shown to have caused. The case nevertheless has valuable lessons for employers and senior managers alike on a principles basis. 

From an employer's point of view, your business can be vicariously liable for any discriminatory act conducted by an employee against another employee if you are unable to show that you took all reasonable steps to prevent the employee from carrying out those acts. Reasonable steps will usually include:

• Implementing (and reviewing) equal opportunities and anti-harassment and bullying policies;
• training management staff on equal opportunities and harassment issues; and
• taking steps to deal effectively with complaints, including taking appropriate disciplinary action (which is the step businesses commonly fall short on).

Employees, usually senior managers, can also be personally liable for acts of discrimination. In this case the Trust's medical director was condemned by the Tribunal as a "self-acknowledged liar" who manipulated and engineered Michalak's dismissal. In addition to being liable for the Tribunal award itself, future employment pickings for him may be slim. Hammering this point home to managers may help your business avoid liability!

If you are an employer and require advice on any aspect of employment law, Charlotte Brannigan, solicitor, can be contacted on 01872 246601 or email This e-mail address is being protected from spambots. You need JavaScript enabled to view it