No limits to discrimination payouts…

Associate, James Howarth looks into the case of R Kalam v The Chief Constable of West Midlands Police.

The widely reported case of R Kalam v The Chief Constable of West Midlands Police saw the employment tribunal award an ex-firearms officer compensation in excess of £800,000 as a result of her winning her claims for direct and indirect sex discrimination, harassment related to sex, victimisation and detriments for making a protected disclosure.

This case serves as a reminder to employers as to their obligations to prevent discrimination in the workplace. Discrimination awards are uncapped, which can result in large sums of damages being awarded to employees who are successful in bringing such a claim.

Background

Mrs Kalam was a Police Officer at the Respondent from 14 September 2008 until her medical retirement on 31 July 2023, and was an authorised firearms officer from January 2012 to March 2021.

Mrs Kalam brought the following claims at the Employment Tribunal:

1. Direct sex discrimination;
2. Indirect sex discrimination;
3. Harassment related to sex;
4. Victimisation; and
5. Detriments as a result of making a protected disclosure.

Admission of liability

In the amended defence of the Respondent, it broadly admitted to the discrimination, harassment, victimisation and detriments as brought in Mrs Kalam’s claim. It did, however, raise a technical legal point relating to time limits i.e. whether the Mrs Kalam brought her claims in time.

Days before the final hearing was due to commence, the Respondent withdrew the technical legal point resulting in the final hearing being converted into a remedies hearing, in order to determine the amount of compensation which would be awarded to Mrs Kalam.

Remedy

The tribunal considered the effects of the admitted discrimination, harassment and detriments on Mrs Kalam’s financial situation and wellbeing.

A substantial award was made for her loss of earnings and pension. Mrs Kalam was also awarded £30,000 for injury to feelings and £3,000 in relation to personal injury (scarring).

Our comments

Although such high awards of damages are not ‘the norm’ or routinely awarded in employment tribunal proceedings, employers still need to keep in mind that it is possible.

Compensation awards in discrimination claims can result in serious financial consequences for an employer who has fallen foul of its obligations in deterring and preventing discrimination, and high compensation awards can not only be made up of injury to feelings, but also other factors such as extended periods of loss of earnings (often as a result of poor health caused by acts of discrimination) and in certain circumstances, aggravated damages where there has been a case of particularly bad behaviour.

In this case, the Judge considered that the injury to feelings was sufficiently serious to come into the upper Vento band, but the lower end of the band. This was due to the severity of injury and loss of career, but also that a favourable prognosis had been made as to the recovery and as such, the award incorporated the pain, suffering and loss of amenity for the psychiatric injury suffered. The Tribunal, when making the decision as to compensation, sought to identify a rational basis on which the harm suffered could be apportioned between a part caused by the wrongdoing of the employer and what had not been caused by the employer. The Tribunal therefore had to identify a particular part of Mrs Kalam’s suffering which was due to the wrongdoing, rather than assessing the degree to which to wrong caused the harm.

The Tribunal further considered when considering its award for compensation, that the psychiatric injury suffered by Mrs Kalam occurred in February 2021, whereas the overwhelming majority of pecuniary loss occurred because of her medical retirement, and the period of sickness that led to the medical retirement beginning. It was held that Mrs Kalam’s psychiatric ill health had persisted since February 2021.

In order to ensure employers obligations are fulfilled, it is recommended that:

1. Employers promote a non-tolerance culture and do not condone or encourage any acts of discrimination;
2. Ensure robust policies and procedures are in place;
3. Provide training at induction, together with regular fresher training – specifically, ensuring that such training is effective and not merely a tick-box exercise;
4. Ensure appropriate disciplinary action is taken where there are cases or instances of discrimination in the workplace; and
5. Learn from any such incidents to ensure that it is prevented in the future.

If our employment team can assist you with a tribunal claim, please get in touch with a member of the team today info@kuits.com.