Where a claimant is successful in a discrimination claim, compensation can be awarded for financial losses (i.e. loss of earnings) and non-financial losses, such as injury to feelings, personal injury and aggravated damages. There is no upper limit on the amount of compensation that can be awarded and as such discrimination claims can be extremely expensive.
The amount of compensation will depend on the circumstances of the case and the effect that the discriminatory conduct has had on the employee. The Tribunal can also make a recommendation that the respondent takes specified steps to eliminate such conduct from being repeated.
What then was the appropriate amount of compensation to award a woman who was subjected to sexual harassment during the interview process, her subsequent employment and thereafter?
Majid v (1) AA Solicitors and (2) Asghar Ali
Miss Majid was described by the Tribunal as a young woman who had completed a Law degree and had almost completed her Legal Practice Course. She was seeking a paralegal position in a Law firm with a view to becoming a trainee solicitor. She knew that trainee solicitor jobs were hard to come by. She was interviewed by Mr Ali, who is the owner of AA Solicitors, for a paralegal position. She was told by Mr Ali that there was the possibility for her to progress from paralegal to trainee solicitor.
Mr Ali commenced the interview by noting that they shared a star sign and that they were very compatible. Findings of fact were made that Mr Ali commented that Miss Majid must go to the gym as she was “very stocky”, and then leant over to feel her arm. He then asked her to marry him, despite being married himself. Miss Majid said no. At the end of the interview he tried to hug her.
Following the interview, Mr Ali told Miss Majid that there was a double shower on the premises. There was no explanation given for this comment. He also told her that he was going to put a double bed in the office for a “chill out area out of hours”.
Prior to Miss Majid starting work, Mr Ali made personal calls to her which was not related to work. On the first day of her starting work he invited her into his office after 5pm and asked her to go to the cinema. Miss Majid declined. He asked if she drank alcohol, to which she said no. Nevertheless, he said he would “get a bottle” for them. He then persuaded her to give him a lift home and during the journey talked about them “going out some time”. He followed up by sending Miss Majid a message via WhatsApp. He continued to ask her to go out with him and again Ms Majid declined.
The comments continued. He asked her to provide a photograph of herself, told her during a meeting that she was distracting him as she “looked sexy”, and asked when she finished her university exams so that he could spend more time with her. On each occasion Miss Majid politely rejected Mr Ali’s advances.
Just over one month after she started working for AA Solicitors, Mr Ali told Miss Majid that he could not afford to pay her and she would be “jobless”. Miss Majid took this to be her dismissal and left. Following the termination of her employment, Mr Ali continued to send text messages to Miss Majid. She did not respond. He then wrote to her demanding the payment of £300 within 7 days for not disclosing her password. Miss Majid submitted a claim for sex discrimination, in the form of harassment on the grounds of her sex. When she did so, Mr Ali reported her to the police for blackmail and wrote to her father suggesting that she was lying and that she could be committing a criminal offence. She made approximately 40 allegations in relation to Mr Ali’s conduct.
Employment Tribunal (ET)
The ET had to consider whether Mr Ali had engaged in unwanted conduct of a sexual nature with Miss Majid, and whether his conduct had the purpose or effect of violating her dignity or creating an intimidating, hostile, degrading or offensive environment for her.
The ET upheld a large number of Miss Majid’s allegations of sexual harassment. It noted that there was an imbalance of power between Miss Majid and Mr Ali. On the one hand, Miss Majid was anxious to become a trainee solicitor, whereas Mr Ali was the owner of the business with considerable authority. Whilst Mr Ali did not intend to create such an environment for Miss Majid, the effect of his conduct was such that he did so. Much of his behaviour was part of a pattern of behaviour which started at the interview and was unwanted by Miss Majid. The ET also found that the true reason for her dismissal was because she had rejected his advances
In assessing the amount of compensation to be awarded to Ms Majid, the ET awarded 18 weeks’ loss of earnings, being the amount of time it took her to find a new job. It recognised that Miss Majid was at the start of her professional career; Mr Ali being an older man in a position of power and authority. It noted that Miss Majid was caused considerable stress and anxiety because of the harassment. As such she was awarded £14,000 for injury to feelings. The ET also recommended that Mr Ali attend an equal opportunities training course for solicitors.
The ET considered awarding aggravated damages, which can be appropriate where the respondent’s conduct has somehow “rubbed salt into the wound”. The ET found that in seeking to charge her over £300 without any warning in relation to a password, writing to her father suggesting that she was lying and reporting her to the police for blackmail, Mr Ali’s conduct did just that. She was awarded an additional £4,000 on that basis.
AA solicitors appealed on the basis that the award for injury to feelings of £14,000 was excessive.
Employment Appeal Tribunal (EAT)
Mr Ali said that his behaviour was no more than modestly obnoxious and insinuating, rather than aggressive, and did not justify such a high award. The EAT did not agree. The Judge found that from the first meeting in the job interview Mr Ali treated Miss Majid in a demeaning and disrespectful manner and as a woman to be present in the office for his pleasure and gratification. When she rejected his advances he turned nasty and she lost her job.
The EAT said that the feelings of hurt and humiliation of losing her job in such demeaning circumstances should not be downplayed. This was her first job in law and was a bad start to her career. Therefore the EAT accepted that the award was correct and the appeal was dismissed.
Discrimination claims can be very expensive, even for employees with short service (or even no service). Allegations of discrimination or harassment are also likely to create bad publicity for an employer.
Often, the first an employer knows about harassment is when an employee submits a written grievance, goes off sick with stress, contacts ACAS to commence Early Conciliation or files an ET claim. Nevertheless, an employer will often be held responsible for the discriminatory actions of its employees. Steps can be taken by employers to reduce the risk of claims being made and in some circumstances provide a defence to those claims. For example, policies on equal opportunities, bullying and harassment should be up to date and implemented, setting out what constitutes acceptable behaviour and what does not.
Employers should also consider training staff on equal opportunities and harassment. This will help managers avoid inappropriate questions at interviews and recognise and deal with harassment at an early stage.