Just One Sexist Comment Can Have Serious Consequences!

In a warning to employers that just one discriminatory comment can have dire consequences, the Court of Appeal has upheld a six-figure compensation award to a secretary whose line manager told her that women take things more emotionally than men (BAE Systems (Operations) Limited v Konczak).

Marion Konczak began working for BAE Systems (Operations) Limited as a secretary in 1998 and was made a permanent member of staff the following year. She had complained of bullying and sexual harassment by members of her team but felt that her complaints were not being taken seriously. On 26 April 2006, after a tearful meeting with her manager, he informed her that men tend to forget things and move on more easily than women.

Mrs Konczak was absent the next day and was certified by her GP as unfit to work on account of work-related stress. She never returned to her job after that and was eventually dismissed in July 2007.

An Employment Tribunal (ET) subsequently upheld her sex discrimination claim in respect of the manager’s comment. Her complaints of unfair dismissal and victimisation were also upheld and she was awarded total damages of £360,179. That decision was later upheld by the Employment Appeal Tribunal.

In challenging the award, the company pointed out that Mrs Konczak had made 15 other, unsuccessful complaints of sex discrimination and contended that the award in respect of a single sexist comment was grossly excessive and an affront to justice. In the course of her work she had experienced numerous other adverse and stressful events that might have contributed to her illness and there was also said to be evidence that she suffered from a diagnosable mental illness even before the comment was made.

The Court accepted that the manager’s comment appeared to have been made in a clumsy attempt to express sympathy with Mrs Konczak. The ET’s finding that the words he spoke were the final straw that pushed her over the edge into mental illness may possibly have been over-generous.

However, in dismissing BAE Systems’ appeal, the Court rejected arguments that that conclusion was perverse. There was nothing inherently unjust in the ET applying the basic rule that a defendant must take the claimant as he finds them, ‘eggshell skull’ or vulnerable personality included, and having a vulnerable personality should not result in any reduction in the amount of compensation payable. The evidence was that Mrs Konczak had not consulted her doctor about her mental health at any point in the two years prior to 26 April 2006. The ET had accepted the evidence that it was the comment made by her manager that had pushed her over the edge into a diagnosable mental illness, as it was entitled to do.

The Court also noted that Mrs Konczak had suffered from mental ill-health throughout the proceedings, which had involved a total of eight tribunal hearings and lasted almost a decade.

A sexist remark of the type that was made in this case can be just as detrimental to an employee as overt harassment and discrimination. It is therefore important to take seriously any complaints made by employees and to train managers and supervisors to improve awareness of what constitutes ‘low-intensity’ sexism. Contact Damian McCarthy  for advice on any discrimination law matter.

Equal Pay – Can You Compare One Type of Job With Another?

For the purposes of equal pay legislation, can workers doing one job compare themselves with others performing an entirely different task when both are paid from a single source? In an important decision, the Employment Appeal Tribunal (EAT) has ruled that the answer to that question is ‘yes’ (Asda Stores Limited v Brierley and Others).

The case concerned about 7,000 Asda retail workers, nearly all of them women, who argued that they performed work of equal value to depot-based workers, most of them men, who worked for the same employer. The depot workers, who, unlike their retail colleagues, had the benefit of established union representation and collective bargaining agreements, were paid a higher salary. An Employment Tribunal (ET) found that the retail workers could compare themselves with the depot workers for the purposes of the former’s equal pay claims.

In rejecting Asda’s challenge to that ruling, the EAT found that the better view of the law was that Article 157 of the Treaty on the Functioning of the European Union conferred an unconditional right to equal pay both on those who carry out like work and on those who perform work of equal value. Although that issue was not entirely clear, the EAT found that it was clear enough and there was no need to refer the matter to the Court of Justice of the European Union for resolution.

The EAT also found that the fact that the retail and depot workers had their pay and conditions determined by a single source – the Executive Board was responsible for differences in pay and could, subject to the overarching control of Asda’s parent company Wal-Mart, have corrected any pay inequality – was sufficient to permit a comparison to be made. Asda’s argument that there must also be a single establishment, collective agreement or statutory framework was rejected. The better view of the law was that the comparison could be made using the established hypothetical test which enables comparisons to be made between workers who do not and never would work in the same location.

The EAT granted Asda permission to appeal to the Court of Appeal.

Says Damain, “Whilst annual reporting on the difference in pay between male and female workers is mandatory for public sector employers and for private and voluntary sector employers with 250 or more employees, all employers who have not already done so are advised to carry out a gender pay audit in order to ensure that any unjustifiable inequalities between the pay of men and women are remedied so as to reduce the risk of equal pay claims in the future.”

The Wording of Contracts is All Important – but Context Matters Too

The wording of contracts is the first port of call for judges who are asked to interpret them – but context matters too. The Court of Appeal made that point in resolving a long-running dispute that arose from the closure of a packaging factory and the loss of over 100 jobs.

The factory’s demise was marked by bitter dispute between the company that owned it, its employees and their trade union. Four workers were summarily dismissed after occupying the premises and the union ran a high-profile campaign which generated much damaging publicity for the company. After the factory ultimately closed, all 109 remaining employees were made redundant.

Following negotiations between the company and the union, a settlement was finally agreed, one of the terms of which was that the employees would receive ’90 days’ gross pay’. However, a dispute arose thereafter as to the correct interpretation of that phrase. The union argued that the sums payable should be worked out by calculating the average gross daily pay of each worker and multiplying that figure by 90. The company argued that the phrase referred to 90 days on the calendar, an approach that resulted in a less generous outcome for the employees.

Following a hearing, a judge preferred the union’s reading of the phrase. The Court, however, took the opposite view and allowed the company’s appeal. It noted that its task was simply to ask what the phrase meant in the context of the facts known to both the union and the company. When that holistic approach was taken, it was clear than an objective reader would have naturally understood that the mutual intention was to employ the calendar method of calculating the 90 days.

Employment Bullying

Have you recently experienced employment bullying and looking for an experienced professional to assist you with building a successful case? Damian McCarthy is the only employment law advocate that you will need to help you get results. With over 20 years of experience, and hundreds of cases surrounding employment bullying, Damian continues to win many of his cases and has experience in dealing with many complex and high profile cases.

Employment bullying is unacceptable but unfortunately, still very common. It can be in many different forms such as, harassment, workplace stress, workplace harassment, sexual harassment, racial harassment and victimisation. If you have felt as though you have been either victimised or mistreated by colleagues or even employers, you have legal rights to be able to take them to court. Sexual harassment is a common form of employment bullying and can consist of sexual advances by an employer in return for career benefits. If you have experienced employment bullying you won’t be able to take your case to an Employment Tribunal, you will have to make a claim in a County Court. Damian McCarthy has had experience in all types of employment law cases and if you have experienced and form of employment bullying, Damian will be able to help you build a successful case.

Damian understands that all cases are unique and should be considered on an individual basis and will offer you a completely tailored service. He will be offering you support throughout your case and work hard with you to be able to plan one that will be a success. Damian has had years of getting results with his cases and is a complete expert in working in employment laws.

If you have been a victim of employment bullying, you have a right to be able to make a claim. Damian McCarthy is the only highly experienced employment law advocate that you will need to achieve a successful case. If you would like more information on what Damian can offer you when it comes to building a case for employment bullying, why not arrange a consultation today. Please call a member of our customer service team on 020 8263 6080 who will be more than happy to help.


Best Lawyer in London

Have you been looking for the best lawyer in London? Damian McCarthy is a highly experienced law advocate who specialises in employment law cases. With many years of working with a wide range of different cases and some being very complex and high profile, Damian has the proven capability to be able to help you get the justice that you deserve. If you have been looking for the best lawyer in London, contact Damian McCarthy today.

By having a client focused approach with all of his cases, allows him to be able to get the results that are required. If you are looking for the best lawyer in London for any cases that surround complex law employment or discrimination claims, Damian McCarthy is the only experienced employment law advocate that will be able to assist you. No matter if you are an employer or employee who is seeking the best lawyer in London, Damian will work extremely hard to understand your case as well as the problems surrounding it whilst respecting your requirements and values.

If you are looking for the best lawyer in London, you will benefit from hiring someone who has an extremely high success rate in winning cases. Having experience in being hired to represent some of the biggest law firms’ clients in the UK, has lead Damian to establish a well respected and highly experienced employment law advocate. By hiring the best lawyer in London, Damian can work with you to develop a strategy that is only made for success and you will be guaranteed to receive honest advice and support every step of the way. With over 20 years of experience in winning employment law cases, Damian has a strong professional reputation and ability to achieve outstanding results.

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For more information on the best lawyer in London, Damian McCarthy offers free, no obligation consultations. Please call a member of our customer service team on 020 8263 6080 who will be more than happy to help.