Calculating Damages For Loss Of Career
09/26/2021
Secretary of State for Justice v Plaistow [2021] 7 WLUK 37
An Employment Tribunal (ET) award of damages for career loss is rare but permissible. In most circumstances, expert medical evidence is required to support a Claimant’s argument that they will never work again in their chosen field, or perhaps at all.
In Secretary of State for Justice v Plaistow the Employment Appeal Tribunal (EAT) upheld the ET’s decision to calculate compensation for discrimination and harassment on the basis that the employee had sustained career-long losses.
Background to the case
The Claimant, C, had been working as a prison officer since 2003. In 2014, he was transferred to HMP Woodhill where he was subjected to repeated horrific acts of direct sexual orientation discrimination, harassment, and victimisation. Among other things, C was frequently called “poof”, “gay”, and “vermin” and subjected to physical abuse. A colleague pointed his finger into C’s face and slapped him, another prison officer screamed at C, clutched his face and dug in her fingernails.
C was eventually unfairly dismissed from his employment with the prison service, a dismissal that also amounted to an act of unlawful victimisation.
C was awarded compensation for injury to feelings, plus aggravated and exemplary damages. Medical evidence showed that C suffered from PTSD, depression, and symptoms of paranoia, and agreed that he presented with functional impairments, including low mood, sleep disturbance, and finding it difficult on some days to leave the house, attend to his personal care, or interact with members of the public. Although both C and D’s experts agreed on the aforementioned, they differed in their opinion regarding future prognosis.
In calculating the damages, the ET was unlikely to return to work before retirement. The overall award was calculated at over £2 million, a figure which included 28 years’ loss of earnings.
The Defendant, D, appealed to the EAT.
The decision
The EAT concluded that the ET had been
i. entitled to conclude that the medical evidence illustrated the psychological harm C had endured was likely to be life-long and that his future losses should be measured on a career-long basis;
ii. correct in applying a mere 5% discount when deciding whether C would choose to leave his employment early or be able to work in another profession in the future;
iii. wrong in considering the general vicissitudes of life, such as death that could affect how long a person could work for;
iv. entitled to take a broad approach when calculating base salary as an average of the different years used by the parties as representative of C’s earnings, including overtime; and
v. mistaken in awarding a 20% uplift in respect of D’s failure to comply with the ACAS Code on Discipline and Grievance, because it had not considered the total amount of the award and its proportionality to the breach.
Comment
The EAT emphasised that in most cases assessing loss over a career lifetime would be inappropriate. However, the evidence showed that C had been subjected to horrendous abuse, both mental and physical. In such career-ruining cases, it is right that the ET step in and ensure the victim is looked after financially. For employers, this case provides a warning that employment law cases can, on rare occasions, include seven-figure awards. Therefore, cases of bullying, victimisation, discrimination and sexual harassment must be dealt with swiftly and fairly, following the Acas Code and in line with legal advice.
While every effort has been made to ensure the accuracy of these court updates, these articles are intended as a general overview and not intended, and should not be used, as a substitute for taking legal advice in any specific situation. Neither Zurich Municipal, nor any member of the Zurich group of companies, will accept any responsibility for any actions taken or not taken on the basis of these article
