Browne v Central Manchester University Hospitals NHS Trust ET/2407264/07; ET/2405865/08; and ET/2408501/08
Date added: 11 January 2012
race discrimination | compensation | chance of promotion
In this case, the employment tribunal awarded an NHS worker, who was dismissed from his senior position in the NHS, close to £1m for race discrimination, despite the tribunal's refusal to increase the award for future loss of earnings on the basis of the worker's argument that he might have been promoted before he retired.
Practical tips
Tribunal awards of this size are rare and generally given to high earners to reflect their loss of earnings and pension rights. It is very unusual for a tribunal to award such a large sum to someone who has been able to return to relatively well-paid work.
Employers should bear in mind that a consequence of the poor economic climate is that tribunals are willing to find that it is more difficult for claimants to get back to comparable work, leading to higher awards for loss of earnings. This makes it more important than ever for employers to prevent discrimination in the first place. |
In March 2011, an employment tribunal upheld claims for race discrimination and unfair dismissal brought by Mr Browne against Central Manchester University Hospitals NHS Trust. Mr Browne, who is black and had been with the NHS for his entire career (from the time he left school), had worked his way up as a specialist in microbiology until he became a divisional director at the trust.
The tribunal found that Mr Browne had been subjected to a campaign of bullying and harassment by Ms Heaton, the director to whom Mr Browne was directly accountable. The tribunal said that the discrimination had occurred after concerns were raised about overspend and failure to meet national targets in Mr Browne's division. Mr Browne was suspended and his employment was eventually terminated in May 2008 on the basis that there had been, among other things, a "loss of trust and confidence" between the parties.
The tribunal concluded that Mr Browne had been unfairly dismissed because the trust had put forward "contradictory and unsatisfactory evidence" as to the reason for dismissal. The trust did not hold an honest and genuine belief that Mr Browne was guilty of misconduct or poor performance justifying dismissal, while the allegation that there had been a loss of trust and confidence was "seriously flawed".
The employment tribunal went on to find that the manner in which the capability procedure against Mr Browne was conducted constituted direct race discrimination. The tribunal also pointed out that the trust had failed to take Mr Browne's grievances seriously, including his complaint that statistics showed that there was a pattern of more black employees than white employees being dismissed by the trust.
The tribunal gave its remedy judgment in December 2011. The tribunal accepted that Mr Browne, who had not had a day off sick in 20 years, had suffered from depression, with his suspension and dismissal making him feel "helpless with guilt and self doubt". He had been unable to sleep and had panic attacks. After his dismissal, Mr Browne had felt "isolated and very upset". The tribunal proceedings had brought him a great deal of stress, putting pressure on his family relationships. He was "visibly distressed" during the tribunal hearing. Mr Browne could not imagine working in the NHS again, despite having a successful 34-year career behind him.
The award for race discrimination included:
- £20,000 for injury to feelings, which is in the upper Vento band;
- £5,000 for aggravated damages;
- £13,000 for personal injury;
- over £172,000 for loss of earnings to the date of the hearing;
- over £100,000 for future loss of earnings; and
- almost £245,000 for loss of pension rights.
When arriving at the award for future loss of earnings, the tribunal noted that Mr Browne had set up his own consultancy to make use of his large network of contacts with NHS surgeons. However, it decided that he would earn less annually than he had in his NHS job, making a profit of around £30,000 for the year ending 31 August 2011. He had worked only two to three days per week on the consultancy business. The tribunal also highlighted that, with the cuts to the public sector, it was becoming more difficult to succeed in a consultancy business like this. The tribunal also had no doubt that future loss of earnings should be calculated on the basis that Mr Browne would have worked for the NHS until his retirement, although it did take account of the possibility that he would have retired at 60 rather than 65.
A key part of Mr Browne's argument in the remedy hearing was that his compensation should take into account the possibility that he would have been promoted to executive director before he retired. The tribunal concluded that it was "far too speculative" to estimate the chance that he would have been promoted. There were a number of positions for executive director within the trust that might have become available, but there were relatively few that would have been open to Mr Browne, given his specialism. The tribunal did not think that it was enough that a number of his peers had been promoted to this level. It had insufficient statistical evidence of the level of competition that Mr Browne would face (ie the number of applicants and the skills that they would have when compared with Mr Browne) or the number of posts that would be available in the relevant period. Mr Browne's award for future loss of earnings was therefore based on his remaining at the level of divisional director.
Once the award (which also included over £8,500 for unfair dismissal) was "grossed up" to allow for the tax that it would attract, the total compensation came to £933,115.
Additional resources
- Race discrimination awards 2010/11 The 2010/11 Tribunals Service report on employment tribunal and Employment Appeal Tribunal statistics sets out the amount of compensation awarded for race discrimination in 2010/11.
- In the employment tribunals Read summaries of more cases in which employment tribunals paid large awards:
|