Case Law Developments

a) Compensation for career-long loss

(Secretary of State for Justice v Plaistow 2021)

The Claimant worked as a prison officer and was the subject of enquires as to his sexuality, including from his line manager, who would refer to him as a “poof”.  He was subjected to physical abuse which included a prison officer pointing a finger into his face and slapping him; he was screamed at; water was squirted at him; and on one occasion his work bag was coloured pink and a ‘fairy’ cake was smeared inside it.  He was victimised for raising grievances about the treatment and was ultimately unfairly dismissed.

As a result of the discrimination, the Claimant was suffering from PTSD, anxiety, paranoia, and sleep disturbance; he found it difficult to leave the house, interact with other people, and attend to his personal care.  

The tribunal considered that even if the Claimant could return to work at some point, which was an “extremely remote” possibility, “this is one of those rare cases where it is appropriate to consider the Claimant’s future losses on the basis of a career long basis”.

The EAT held that the tribunal was entitled to find that the Claimant had suffered permanent damage to his career and was thus entitled to be compensated accordingly.  It did find however that the tribunal needed to look again at the discount which should be applied, to reflect the general uncertainties of life which might have cut the Claimant’s career short, such as the possibility of disability or early death.

It is rare that compensation for loss of earnings will reach the £2 million region, as the tribunal found to be the Claimant’s loss in this case.  Nevertheless, this case highlights that there is no cap on the amount which a tribunal can award, and, that there are circumstances where awards can be made, to reflect financial loss, for the remainder of an employee’s working life.

b) ‘Gender-critical’ beliefs – (Forstater v CGD Europe and Others 2021)

The Claimant believes that it is impossible to change the sex assigned to a person at birth.  She lost her job after making her views known online.  She brought a discrimination claim, however, the tribunal found that her belief was not protected by equality law, as it was “not worthy of respect in a democratic society”.

The Employment Appeal Tribunal allowed her appeal, finding that “it is only those beliefs that would be an affront to Convention principles in a manner akin to that of pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms, that should be capable of being not worthy of respect in a democratic society.

Beliefs that are offensive, shocking or even disturbing to others, and which fall into the less grave forms of hate speech would not be excluded from the protection … the potential for offence cannot be a reason to exclude a belief from protection altogether.”
The EAT cautioned that its decision was not expressing a view as to any merits on either side of the transgender debate, and that people with gender-critical beliefs cannot misgender or harass trans persons with impunity. Everyone continues to be subject to the prohibitions on harassment and discrimination within the meaning of the Equality Act.

This case highlights to employers the fine balancing act involved in the need to accommodate those with gender-critical beliefs, while continuing to ensure that the workplace remains a safe place for trans persons.