‘Heat of the moment’ resignations and dismissals
The EAT held that an Employment Tribunal erred finding that an employee’s resignation in the heat of the moment was really intended.Read more
Ms Macken joined BNP Paribas in 2013 after eight years of experience at Deutsche Bank where she worked at a senior level. Despite her experience, she was hired on a salary of £120k in the prime brokerage division, whereas her male colleague comparator received £160k for performing the same role. Additionally, over the following four-year period, her male colleague received more than £167k in bonuses, in comparison to the £33k that Ms Macken received over the same time. Ms Macken raised repeated concerns about the fact she was being paid differently but the bank failed to address these complaints and instead downgraded her performance appraisals. This in turn, resulted in Ms Macken receiving lower bonus awards.
Ms Macken also faced various sexist incidents during her employment. On one occasion a witch’s hat was left on her desk by male colleagues, and her boss would often respond to her questions with “not now Stacey”. Colleagues then picked up on this habit and copied it. Beyond this, a senior colleague of Ms Macken would answer his phone in an inappropriate manner, on one occasion discussing intimate details of a friend who had engaged in “roleplay” with his wife, and often answering the phone with the phrases “hey sexy” and “hey f**kface”.
In December 2017 and August 2018, Ms Macken brought claims at the employment tribunal in respect of equal pay, direct sex discrimination, harassment related to sex, victimisation and detriments done on the ground of protected disclosures. Following a lengthy hearing involving witness evidence from some nine witnesses, the employment tribunal upheld Ms Macken’s claims for direct sex discrimination, victimisation and equal pay. The incident involving the witch’s hat was held to be an inherently sexist act in a predominantly male working environment and the senior colleague’s persistent use of the phrase “not now Stacey” was held to be a demeaning comment used to belittle the claimant.
The tribunal’s judgement was published in 2019 and a remedy hearing took place in 2021, at which a total compensatory award of £2.08m was made by the tribunal. The total award was made up of £402k as an equal pay award; £213k for personal injury; £860k for future earnings; and £123k in additional compensation (including awards for injury to feelings and aggravated damages). The tribunal also awarded an uplift for the bank’s unreasonable failure to follow the Acas Code of Practice on Disciplinary and Grievance Procedures (the “Acas Code”). As a result, a further £317k was added to the total.
The tribunal also ordered the bank to complete an equal pay audit and report on gender pay by 30 June 2022, relating to all remuneration including base pay, pension contributions, allowances and discretionary bonus payments made by the bank. PNB tried to argue that it is now carrying out voluntary equal pay reviews on an annual basis and that historical anomalies have now been corrected. The tribunal noted, however, that the bank still operates an opaque pay system and that “such significant cultural shifts take many years”.
This case highlights clearly to all employers the importance of adopting a culture in which discriminatory behaviour of any form is addressed robustly as soon as possible and where any unequal pay practices are identified and improved at the earliest opportunity.
In order to support developing that culture, all employers should reflect on the following:
For advice on avoiding workplace discrimination, contact one of our employment experts by calling us on 01332 226 155 or completing the form below.
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