In Secretary of State for Justice v Plaistow the Employment Appeal Tribunal (EAT) upheld the tribunal’s decision to award career loss compensation.
Here Mr Plaistow was a prisoner officer. He had worked for the prison service since 2003, but in 2014 he was transferred from HMP Feltham to HMP Woodhill. Soon afterwards, Mr Plaistow was subjected to sexual orientation discrimination and harassment because he was gay and/or because he was perceived as being gay and/or bisexual. This included terrible physical and verbal abuse and unsolicited enquiries about his sexual orientation. This treatment of sexual orientation discrimination lasted some two years, until he was dismissed in August 2016.
As a result of this awful sexual orientation employment discrimination and harassment, Mr Plaistow suffered from PTSD, depression and symptoms of paranoia and which were assessed, sadly, to be life-long. He therefore claimed career loss of earnings and the tribunal agreed. He was awarded £41,000 for injury to feelings, £15,000 for a rare, aggravated damages award and £8,000 for an even rarer exemplary damages award. As to the compensation, Mr Plaistow was assessed by medical experts instructed by each party. While they agreed on the diagnosis they disagreed on the prognosis. The Claimant’s psychiatrist concluded that his condition was life long, while the Respondent’s expert said that there was insufficient evidence to conclude that his conditions were permanent. The tribunal agreed with the Claimant’s expert and further held that there was no reason not to assume that Mr Plaistow’s employment would not have continued until retirement to calculate the period of loss of earnings. It only applied a 5% discount to this claim to account for the possibility that Mr Plaistow would have chosen to leave the prison service early or the possibility that he could return to some sort of other employment in the future. He was also awarded a 20% uplift for the prison service’s failure to follow the ACAS Code of Practice for disciplinary and grievance procedures. The Respondent appealed both this and the career loss of services award.
The EAT rejected the challenge to the career-long basis for the award stating that the tribunal had been entitled to find that Mr Plaistow’s condition was likely to be life-long. It also rejected the Respondent’s argument that the 5% discount was too low, because there was no finding that the Claimant would be likely to obtain equivalent employment over any time period. But it did say that the tribunal had not considered whether there would be other general factors of life that could have applied such as the possibility of early death, disability or other unforeseen circumstances which could have shorten the possibility of career loss of earnings.
The EAT also allowed the prison service’s appeal regarding the 20% uplift for it’s failure to follow the ACAS Code because the tribunal had not considered the absolute/totality of the value of the award it was making. Given the likely award was going to be over £2 million, and significant, the EAT felt that the tribunal had not given this proper consideration. Therefore it sent the case back to the tribunal to reconsider the questions of discount and uplift.
In my recent successful case of Barrow v KBR, the tribunal properly considered the totality of the award – £2.5 million – when assessing the uplift for the failure of the employer to follow the ACAS code at 8%. Even though their behaviour had been egregious when dismissing my client, the tribunal took into account the injury to feelings and personal injury awards it had made totalling £45,000, a £7,500 for aggravated damages award and £1.4 million for loss of earnings past and present when determining the percentage uplift.
This blog is written by Anita Vadgama, Legal Director for didlaw
