Ms Macken’s complaints

Ms Macken’s complaints included:

• Being paid £40,000 less a year than a male colleague performing the same role
• Receiving half the level of bonus than her male colleague, despite achieving the same performance grading
• Being belittled by her boss, who said “not now, Stacey” so often that it was a source of commentary among her colleagues
• Having a witches hat left on her desk by a drunken male colleague

The Employment Tribunal upheld the majority of the Claimant’s claims in 2019. Largely due to the pandemic, the remedy hearing didn’t take place until early 2021 and the judgement was published earlier this month. It attracted headlines due to being one of, if not the, highest ET award ever made.

The award

Ms Macken was awarded a staggering total of £2,081,449.70. The other numbers in this case are equally eye-watering, especially for a remedy hearing:

• An 8 day remedy hearing
• A trial evidence bundle of 3,395 pages
• 9 witnesses in total (4 of which provided only written statements)
• 6 months for the tribunal to prepare the written judgement
• A remedy judgement that runs to 74 pages

The Employment Tribunal’s analysis and calculation of loss

The tribunal’s analysis and calculation of loss was complex, and clearly fact specific, but this case serves as a memorable reminder of the potential exposure where claims not subject to a cap on compensation are involved.

The equal pay elements of Ms Macken’s claim alone accounted for over £400,000 of the award.

Future losses almost £1m. Over £200,000 for psychiatric personal injury.

Employers familiar with the concept of Vento bands will appreciate that, although discrimination awards are uncapped in theory, Tribunals will tend to award within the low, middle or high Vento bands for injury to feelings. Ms Macken was awarded in the middle of the high band which, for the relevant date of her claim, amounted to £35,000, plus £15,000 aggravated damages.

The discrimination dated back over several years, the Tribunal considered the Respondent’s conduct to be “spiteful and vindictive” and they weren’t impressed at the bank’s failure to apologise.

On top of all of the various elements of the award, the total was uplifted by 20% for the bank’s failure to follow the Acas Code. That uplift alone totalled over £300,000.

This is a helpful reminder to employers and employment law practitioners alike, that the elements of compensation in complex discrimination claims can easily combine to create potentially ruinous (or life changing, depending on your viewpoint) amounts.