Chris Cox: Eva Michalak wins £4.5 million over discrimination

Expressions of disbelief in some newspapers about the size of the award of compensation for Dr Eva Michalak, who will apparently receive almost £4.5 million from the Mid Yorkshire Hospitals NHS Trust following her successful employment tribunal case, are rarely combined with equivalent expressions of outrage at the way in which she was treated by senior staff at the Trust. In fact, the assessment of compensation for unlawful discrimination by a tribunal is strictly defined by statute and the courts, and merely reflects the actual financial losses suffered by the victim, combined with recompense for the serious psychological harm caused to her, and a limited payment for what is called “injury to feelings” (which must be proved). In this case, the bulk of the award is for loss of earnings and pension, given the medical evidence of the impact of the discrimination on Dr Michalak future working life.

What may also come as a surprise to some readers is the fact that the individual employees responsible for the discriminatory behaviour are personally liable under the equality legislation for satisfying the award in Dr Michalak’s favour, having joint and several liability with the Trust. This has always been the case, but is nevertheless a welcome reminder to all staff working in the health service that if you harass, bully or otherwise treat to their detriment fellow employees on the proscribed grounds, then you may face a very hefty financial bill for your actions, as well as potentially disciplinary action by your employer and even by your professional regulatory body.
The diversion of badly needed public funds from patient care to compensate the victims of discrimination for the unlawful actions of your staff (and remember, there is no mention in the press reports of the legal costs incurred by the Trust in defending this action), is obviously to be regretted. Yet, employers only have themselves to blame. Too often equal opportunities policies are filed away in HR office cabinets (or nowadays on organisational websites), with little evidence of robust implementation throughout the organisation, involving every member of staff from the Executive Board downwards.

On 6 April 2011 the Equality Act came into force drawing together all of the public sector duties previously found in the separate pieces of equality legislation, into one single equality duty in respect of the protected characteristics of age, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation. Key elements of that duty include the elimination of discrimination, harassment and victimisation, and the advancement of equality of opportunity, not only in relation to the organisation’s employment practices, but also how it delivers it services to the public. Employers in the public sector must clearly do more to address the attitudes and behaviours of some staff, which have no place in the contemporary workplace.

Chris Cox is Director of Legal Services, Royal College of Nursing.