Comments on: Chris Cox: Eva Michalak wins £4.5 million over discrimination

By: Dr Anil Jain

Dr Anil Jain — Sat, 28 Jan 2012 15:36:16 +0000

Many thanks Chris.

Do you think the BMA is going to learn any lessons from this high profile case? They have subcontracted legal assessment which unfortunately is mostly undertaken by assitant/ trainee solicitors based on papers submitted by BMA IROs and Employment Advisors! No wonder so many cases fail merit assessment as due diligence is not applied.

It is clear from Dr Michalak's and other cases that the BMA is failing doctors whose cases are complex begin with as highlighted by Dr Michalak's case. She had lost her career and job and would have lost chance of looking after herself rest of her life if her husband has not fought her her case. The BMA should be held accountable otherwise other doctors will lose their livelihood!

By: Louise Freeman

Louise Freeman — Tue, 10 Jan 2012 04:29:13 +0000

LJF
Dr Michalak was a BMA member and was represented in the trust disciplinary process by a BMA official. I suspect that her Employment Tribunal claim failed the BMA merits assessment which takes place prior to the BMA agreeing to pick up the bill for legal representation in the ET. This seems similar to another high profile case Awotona v. South Tyneside 2002 in which a doctor was forced to meet their own costs for legal representation despite being a BMA member and having a case which they eventually overwhelmingly won.
From the 2 high profile cases – Michalak & Awotona – it seems at least possible that the merits assessment standard is set too high and members are at risk of being deserted by the BMA at the point at which they most need support. As a BMA member, I would therefore be very interested to find out how many claims are put forward annually for merits assessment by the BMA, the proportion accepted, the proportion won and the amounts awarded by the ET system.

By: Hvdb

Hvdb — Mon, 09 Jan 2012 04:28:54 +0000

Surely the payment by the Trust and the cost to the Trust of the defence of the three managers guilty of illegal discrimination should be seen as a benefit in kind by HMRC to them and they should pay tax accordingly. Who'se responsibility is it to inform HMRC, the Trust on the P11D or the individuals ?

By: PF

PF — Sun, 01 Jan 2012 19:14:02 +0000

There is no mention of the BMA in the judgment. Eva Michalak was represented by her husband. Why did the BMA not help. I would have thought that was what we pay our union dues for.

By: Nick Hanning, RWPS LAw

Nick Hanning, RWPS LAw — Wed, 21 Dec 2011 18:51:35 +0000

Chris is correct that in fact the largest element of the award was actually tax which Dr Michalak will be handing back to the Treasury, albeit via HMRC.

The Trust confirmed at the hearing that none of the individuals would be paying anything. Even if an individual award had been made against any of them, the Trust would have paid that too.

By: Chris Cox

Chris Cox — Tue, 20 Dec 2011 19:20:31 +0000

The loss of earnings
and pension loss are grossed up to take account of tax that will be payable,
which accounts for more than £2 million. Hence most of the award is technically
for loss of earnings and pension loss including tax. Non-taxable loss amounted to around £260,000.

By: Dr Fred Kavalier

Dr Fred Kavalier — Tue, 20 Dec 2011 16:57:21 +0000

I agree with what you say, but I'm not sure that your figures are correct. According to the Daily Telegraph “She was awarded £1.1 million in loss of earnings, £660,000 in pension losses
and £100,000 for medical costs as well as damages for injury to feeling and
psychiatric injury. Exemplary damages were also awarded against the trust.” If this is correct, the bulk of the award is not for loss of earnings and pension. Will the individual employees responsible for the discriminatory behaviour be required to pay the award? I doubt it – the NHS will probably indemnify them and pick of the bill. It's a sad and cautionary tale, and a very expensive one for the NHS.