The claimant began work as a prison officer in 2003.   In 2014 the claimant was transferred to another prison (HMP Woodhill).  It was after this transfer that he was subject to harassment on the basis of his sexual orientation. This included physical abuse as well as repeated enquiries about his sexual orientation. The harassment continued until he was dismissed in August 2016. The Tribunal allowed his claims relating to discrimination, harassment and victimisation on the basis of sexual orientation. The issue arising was the level of compensation to be paid.

The Tribunal, at first instance, awarded £41,000 for injury to feelings, £15,000 for aggravated damages and exemplary damages of £8,000. The financial loss arising was determined to be on the basis of the whole career. This was in relation to the medical evidence adduced that the claimant had suffered from depression, paranoia and PTSD as a result of the harassment faced.  There was disagreement between the experts on these points. However, the Tribunal found that compensation would be life-long, only awarding a 5% discount on the basis that the claimant may have decided to leave employment early. This was offset though by a 20% uplift for the failure to follow the ACAS Code relating to the claimant’s dismissal.

The Prison Service appealed the awards that had been made. The first aspect to the appeal was the decision that the financial loss would be career long. However, the EAT found that the decision to award it on a career long basis was correct and was based upon the medical evidence before it. However, when it came to the 5% reduction the appeal was successful with the EAT citing that the Tribunal had failed to take into account the more general issues in life such as career being cut short as a result of unforeseen circumstances such as death or disability.

The Prison Service was also successful in their appeal regarding the 20% uplift due to the failure to follow the ACAS Code. The reason for this was the failure of the Tribunal to consider the overall award that would be made and the effect the 20% uplift would have. Taking into account the career-long financial loss it was found that the award could be in the region of £2 million. Therefore, there should have been greater care taken in working out with fairness the level of the uplift that should have been awarded rather than using 20% as a general figure.  These points were remitted to the Tribunal to make a decision on the award to be made.

Practical Lessons

This decision gives a good insight into the compensatory awards to be made following a long-sustained campaign of harassment. The fact that there was medical evidence to outline how it had led to depression and PTSD led to a greater award being given as the Tribunal looked at it from a whole career long perspective. In doing so, the Tribunal needs to be aware of the knock-on effect. The Tribunal failed to do this when it came to the chance that the claimant would have left/ceased employment before normal retirement age and they also failed to consider the effect in giving an uplift considering the effect of that uplift in monetary terms. Therefore, when an award is made of this level the extent to which it affects other aspects of the award must be examined.
https://www.bailii.org/uk/cases/UKEAT/2021/0016_20_0607.html