£4.5 million award for campaign of discrimination following pregnancy

Posted by Ruth Christy on
Whilst the average award for discrimination claims is not as high as one might think (around £15,000 in 2010/2011) there are occasionally cases where the award is much higher.

A recent award of nearly £4.5 million in favour of a consultant obstetrician, who was forced out of her job and subjected to unlawful sex and race discrimination, is thought to be the largest award in the UK for a discrimination case.

Senior employees at Pontefract General Infirmary who plotted to remove Dr Eva Michalak before and during her maternity leave were also made jointly and severally liable for the award.

The Employment Tribunal (ET) heard that the campaign against Dr Michalak began in 2003 when she was seven months pregnant. She had reportedly been the first consultant physician at the hospital to take maternity leave.

The ET found that senior staff members had met secretly and determined to get rid of her. When she returned from maternity leave she began to receive complaints, criticism and false accusations of bullying until she was eventually suspended in 2006.

The suspension was described by the ET as "lengthy and wholly unauthorised" because it had continued beyond six months, which was contrary to NHS procedures and despite there being no suspicion of criminal activity on the part of Dr Michalak.

The NHS then tried to have the suspension approved by the High Court based on "wholly untruthful evidence". As a result the ET concluded that Dr Michalak should also be awarded exemplary damages because the employer's conduct amounted to "oppressive, arbitrary or unconstitutional action" by servants of the Government.

The hospital Trust's medical director at the time was ultimately found to have "manipulated" and "engineered" Dr Michalak's dismissal in July 2008 and was condemned by the ET as a "self-acknowledged liar". The ET stated that it was "positively outraged at the way this employer has behaved".

According to medical experts, Dr Michalak suffered post-traumatic stress disorder, anxiety and depression disorder and an enduring personality change as a result of her experiences. She had no prior history of mental ill-health. The ET found that it was highly unlikely that Dr Michalak would ever work as a doctor again.

The award was made up of future loss of earnings (£991,802), loss of pension (£666,260), as well as past loss of earnings, injury to feelings, psychiatric damage amongst others, and the tax payable on it.

Whilst the damages awarded in this case are exceptionally high, unfortunately the discrimination is by no means unique. The press recently reported the case of an NHS manager who was awarded £1 million when he was subjected to race discrimination, including 'systematic bullying and harassment' by staff at a Manchester NHS Trust.

The cases are powerful reminders that the cost of discrimination can be enormous when situations go spectacularly wrong and in order to defend such claims it is essential that employers provide equal opportunities training to staff, and regularly review ongoing disciplinary and grievance situations with an impartial eye.

Perhaps the size of the award against the individuals in the Michalak case may be used to persuade those who are reluctant to be trained!

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Ruth provides guidance for clients and keeps them up to date with the fast pace of change in employment law.

Ruth Christy
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