£2m+ compensation awarded in discrimination case: Macken -v- BNP Paribas

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:

• Review equal opportunities and anti-harassment policies to ensure that these are fit for purpose and accurately identify and address key risk areas within the business.
• Implement regular and effective training. Training should then be incorporated into new processes and repeated at regular intervals throughout employment. Ideally bespoke training should be provided for managers with specific emphasis on how to spot and handle discriminatory behaviours. This is not only good employment practice, but also a key component of the ‘reasonable steps defence’ which exists for employers under the Equality Act 2010 (see our previous article on the case of Allay -v- Gehlen here for more information).
• Encourage a culture where individuals feel able to share their concerns so that employees know where to turn if they encounter inappropriate behaviour. Employees should feel able to speak to a range of people within an organisation including to HR, a senior manager, or an anonymous hotline (depending on the size and resources available to the organisation). Importantly, employees should feel safe in reporting issues and following the employer’s grievance process. There should be no fear that doing so will expose them to retaliation or have a detrimental impact on their future career.
• Respond promptly and fully to grievances. All allegations relating to discriminatory practices (be that discriminatory treatment or unequal pay practices) should be taken seriously and fully investigated as part of a thorough grievance process. Any internal processes should reflect both the employer’s internal grievance process and the requirements of the Acas Code.
• Keep a paper trail throughout the employment relationship, from recruitment onwards and particularly of significant HR processes, such as performance appraisals, pay review and bonus awards. This provide good evidence that decision making has been fair and objective, rather than based on discriminatory factors.