In Secretary of State for Justice v Plaistow (2021), the Employment Appeal Tribunal has upheld the decision of a tribunal to award career-long losses for sexual orientation discrimination and harassment.

The Claimant worked as a prison officer at HMP Woodhill. He was the subject of enquires as to his sexuality, including from his line manager, who would refer to him as a “poof”.  He was subjected to physical abuse which included a prison officer pointing a finger into his face and slapping him; he was screamed at; water was squirted at him; and on one occasion his work bag was coloured pink and a ‘fairy’ cake was smeared inside it.  He wrote to his MP and raised a number of grievances in relation to how he was being treated, but they were not investigated.  Instead, he was then victimised, and ultimately, unfairly dismissed.

It was agreed that as a result of the discrimination, the Claimant was suffering from PTSD, anxiety, paranoia, and sleep disturbance; he found it difficult to leave the house, interact with other people, and attend to his personal care.  The medical experts disagreed however as to the Claimant’s prognosis.  The Claimant’s expert took the view that his prospects of recovery were poor, and so his mental impairments were likely to be permanent.  His employer’s expert however considered that there was insufficient evidence to say that the Claimant would not make a recovery at some point, such that he could return to some form of employment in the future.

The tribunal considered that even if the Claimant could return to work at some point, which was an “extremely remote” possibility, he “would need to undergo a lengthy period of training and/or rehabilitation into any workplace and he would be very substantially disadvantaged in the labour market when seeking employment after what would be a very lengthy absence from work with significant mental health issues”. In the circumstances – and after having considered it likely that “the Claimant would have remained in work up to retirement age” – the tribunal concluded that “this is one of those rare cases where it is appropriate to consider the Claimant’s future losses on the basis of a career long basis”.

The EAT held the tribunal was entitled to find that the Claimant had suffered permanent damage to his career and was thus entitled to be compensated accordingly.  It did find however that in applying a discount of 5%, to account for the possibility of the Claimant having left his employment early or returning to work at some point in the future – the tribunal failed to consider the more general uncertainties of life which might have cut the Claimant’s career short, such as the possibility of disability or early death. The EAT therefore allowed this part of the employer’s appeal and sent the case back to the tribunal to give due consideration to the question of discount.

In Conclusion

It is rare that compensation for loss of earnings will reach the £2 million region, as the tribunal found to be the Claimant’s loss in this case.  Awards for financial loss tend to be more modest, to reflect a reasonable period that a claimant is out of work due to the discrimination that they were subjected to.

Nevertheless, this case highlights that there is no cap on the amount which a tribunal can award, and, that there are circumstances where awards can be made, to reflect financial loss, for the remainder of an employee’s working life. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate.

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