In July 2022, we reported on the case of Maya Forstater, who took her employers, the Centre for Global Development (GCD), to the Employment Tribunal after her contract with them was not renewed following a negative reaction from colleagues to tweets she had posted on her own Twitter account, reflecting her gender-critical views. The essence of her claim was that she had been discriminated against on the grounds of those views under Section 10 of the Equality Act 2010.
The tribunal judge ruled against her, but Forstater appealed and after a 6-day hearing, the Employment Appeal Tribunal overruled the judgment of the tribunal. The case was sent to a new tribunal to determine whether her treatment was due to – or related to – those beliefs.
That tribunal found that there had been direct discrimination against her, and a date was set for a remedy hearing, which delivered its judgment in June 2023.
What is a remedy hearing?
The case has focussed attention on this final stage of the tribunal process. For many people, the verdict of the tribunal might be thought to be the end of the affair with the question of compensation settled by some recondite process and the parties advised by letter after the fact. However, this isn’t the case for every claim; in some cases, the issue may be sufficiently complex that a further hearing is needed, where the parties can put forward their arguments either to increase or reduce the amount of compensation finally awarded.
As with many hearings, the judge will give both parties the information they need to prepare, as well as the date of the hearing and how long it’s likely to last. The claimant will need to provide the respondent and the tribunal with any relevant paperwork related to the claim and a witness statement, outlining the details of the compensation they are seeking as well as a schedule of loss, which breaks down the compensation into such areas as loss of earnings/pension and injury to feelings caused by the circumstances behind the claim.
They will also need to provide mitigation evidence, including details of jobs they have tried (successfully or unsuccessfully) to apply for since the dismissal and any medical evidence that relates to the claim.
Why is this needed? Simply put, the tribunal will expect a claimant to have tried to reduce their loss as a result of the dismissal; if they can’t prove that they have done so through looking for new work, their compensation may well be reduced.
What happened in the Forstater case?
The remedy hearing broke the award down into several areas.
·£27,000.00 [made up of £25,000 injury to feelings and £2,000 aggravated damages (see below)]
·£14,000.00 [loss of earnings to Spring 2021]
·£50,000.00 [Loss of chance / loss of earning capacity]
This totalled £105,778.47, a significant award and one which underlines just how costly a lost Tribunal case can be for an employer.
Points to remember
One thing that the remedy hearing did highlight was the effect of behaviour by the respondent (GCD) after the Employment Appeal Tribunal hearing.
Part of the award was aggravated damages for “oppressive and high-handed conduct” in public statements that the CGD president and vice president made during the course of the case, overstating judicial observations about the Claimant’s belief (in short, they had misquoted the Tribunal judge) and in equating that belief to bigotry [see paragraph 28 of the Remedy judgment].
Tempting though it may be, and especially when the subject is an emotive one or has caused feelings to run high, employers who are involved in an Employment Tribunal or Employment Appeal Tribunal case must be very cautious about any public statements, either on social media or in press releases, which pass comment on any aspect of the judgment. In the Forstater case, the respondent’s comments misrepresented the Tribunal’s findings and ended up increasing the amount of compensation that she received, albeit by only £2,000.
Expert legal guidance from solicitors experienced in the way that a tribunal hearing works will stand an employer in good stead as they decide whether or not to comment on a judgment and, if so, what to say.
The input of reputation management and PR experts would be very valuable as well and could save a lot of trouble and expense further down the line.
Further information can be found in this online document.