A former NatWest bank employee has been awarded a record £4.7 million for unfair dismissal and disability discrimination, with the award recently confirmed in the Employment Appeal Tribunal.
The claimant, known in the tribunal proceedings as “AB” worked for NatWest (subsequently Royal Bank of Scotland plc) from 2008 until her resignation in 2014. In August 2008, while on her way to her first day’s employment, she was knocked down by a car and suffered a broken leg, knee ligament and nerve damage. Although she returned to work two months later, her left leg was in a brace and her left foot in a splint and she had to use crutches. The damage was permanent and she continued to wear the foot splint, walking with a limp. She was in constant pain. From November 2008 she was paid disability living allowance and, unsurprisingly, RBS accepted that she was disabled for the purposes of the Equality Act 2010.
While employed she also suffered from mental illness amounting to a disability, having been diagnosed with stress, low mood and physical pain.
AB said in her evidence that, as a result of her disability, she was shouted at by other staff who claimed that she was “worthless” and of “no help” to customers. She was made to work on the till, notwithstanding her disability, no occupational therapy was provided and there were no workstation adjustments to accommodate her needs. In September 2013 she was coerced into accepting a demotion from customer adviser to customer services officer and she was denied a transfer to another branch on the basis that her physical disabilities would adversely affect her ability to do the job. AB said that this left her feeling humiliated.
She resigned an May 2014 and said that she had suffered a serious psychiatric injury which left her unable to work and requiring round the clock care. At an employment tribunal in February 2016, she was found to have been constructively unfairly dismissed and discriminated against as a result of the requirement to work on the till, the failure to make reasonable adjustments, the bullying (on five occasions) and the denial of the requested transfer to another branch.
The remedies hearing stretched over 13 days between July and December 2017, with the decision sent to the parties in March 2018. The tribunal considered medical evidence suggesting that she suffered a severe depressive disorder with psychosis and a very poor prognosis. It was anticipated that she would never be able to return to work. RBS provided medical evidence suggesting that her psychiatric condition was “attributable” to other factors, including a childhood trauma. The schedule of loss claimed more than £10.5 million, including £9.9 million for future care and assistance. The tribunal concluded that the award should be £4,670,535 plus interest of £54,266.20, making a total award of £4,724,801.
RBS appealed, claiming that:
- The hearing should have been adjourned for an assessment of AB’s capacity to conduct the litigation and give evidence at the remedy hearing (she did not do so).
- Without such an assessment the tribunal should have concluded that her failure to give evidence indicated that she was exaggerating her ill-health.
- The tribunal wrongly failed to reconsider its decision not to adjourn to allow the assessment to take place.
- The tribunal should have reduced the amount payable to take into account that her psychiatric condition would have occurred in any event because of her pre-existing vulnerability and other psycho-social stress factors.
- The tribunal failed to give sufficient reasons to explain why AB’s medical evidence was preferred to the the bank’s medical evidence.
- The tribunal was wrong to calculate the award for the cost of past care on the basis of the aggregate rate.
- The tribunal had misapplied the Social Security (Recovery of Benefits) Act 1997, resulting in an element of double recovery.
At the Employment Appeal Tribunal, RBS abandoned grounds 6 and 7. In respect of grounds 1 and 3, Mr Justice Swift noted that when asked to give evidence at the remedies hearing, AB’s response was unintelligible. She made sounds and grunts and her behaviour was similar to that which she had shown when attending for one of her medical examinations. After considering whether AB had mental capacity to take part in the proceedings, he concluded that there should have been an assessment and its absence was an error by the tribunal. However, the Bank’s appeal on this ground was time-barred, because it was not made within the 42 days following the decision being sent to the parties on 27 July 2017.
As for ground 2, the arguments put forward on appeal were not made at the remedies hearing. Essentially, the Bank’s argument was that if the tribunal decided that AB had capacity to litigate, it followed that in not giving evidence, AB must have been unwilling, rather than unable, to do so. Mr Justice Swift disagreed that one led to the other. Any determination of exaggeration would depend not only on AB’s conduct at the hearing.
As for ground 4, the tribunal had already apportioned the cause of harm to AB as 75% attributable to the unlawful discrimination and 25% attributable to the road traffic accident. That was a reasonable assessment and therefore did not need to be reopened.
Finally, in respect of ground 5, the tribunal had made its decision about which medical evidence to prefer and the reasons given by it for doing so were “clear and coherent”.
Although the employment tribunal had made an error in respect of ground 3, in the circumstances there was no need for the matter to be remitted for further consideration and the remedies orders would therefore stand.
This decision is notable for the size of the award which, as far as I am aware, is the largest made for disability discrimination. While there are no doubt examples of “worse” discrimination, it is the effect on the claimant which matters when assessing financial losses resulting from the discrimination. In many cases there is a risk that an employee is effectively rendered unemployable, particularly when the consequences are related to mental health issues. It’s also worth bearing in mind that the vast majority of employers will not have insurance to cover such an eventuality. Subscribers to CLB Employment Solutions have the option of taking insurance cover against tribunal awards and costs of up to £50,000 per claim (total £500,000 per year).
