The recent Employment Tribunal judgment of Marks v Derbyshire Healthcare NHS Foundation Trust is a useful reminder of the potential sums a successful discrimination claim could cost a company. A former HR director of the NHS Trust, Mrs Marks, brought successful unfair dismissal and sex discrimination claims and has been awarded a whopping £830,000 in compensation. The case reinforces the need for employers, regardless of size and resource, to ensure they have policies and procedures in place to clearly identify what constitutes “unwanted conduct” in the workplace.
Mrs Marks was a friend of Mr Baines, the trust’s chairman. They regularly had lunch together and talked about both work and personal issues. Just before Mrs Marks went on annual leave to get married Mr Baines took her for a drink to wish her well. As she left Mr Baines hugged her and told her that he “loved her”. When she returned from leave they continued to be friendly however the relationship soon soured.
In October 2012, the tribunal heard that Mrs Marks was delighted when a member of staff failed to get a promotion. Mr Baines was on the appointment panel and following the decision went into Mrs Mark’s office and kissed her. The tribunal judgment said that he thought “he had obtained for her the result she desired and wished to seek some reward”. Later that month, she sent a text message to Mr Baines in which there was an “indication of discomfort” about their relationship.
Mr Baines’ behaviour became more erratic - leaving her love letters, accusing her of having affairs with colleagues and sending her abusive text messages. After Mrs Marks had essentially spurned his advances Mr Baines turned against her. Contact between the two was reduced but in March 2013 trust members attended a dinner. Another senior officer bought Mrs Marks a glass of prosecco and Mr Baines became jealous. He later sent her a barrage of abusive texts. The Tribunal considered Mr Baines to be in emotional turmoil about his relationship with Mrs Marks and his irrational behaviour was in response to the cooling off of the relationship.
Mr Baines then received a complaint about Mrs Marks from another member of staff; the tribunal heard he was “clearly delighted”. He spoke to members of staff in an effort to build a case against her. The tribunal commented that there had been a clear abuse of authority on Mr Baines’ part.
She was then suspended, out of the blue, over these allegations and was escorted out of the building. Mr Baines then decided that the Trust should dispense with her services. She raised a grievance about her treatment and went on to resign.
Mrs Baines was successful in her claims for constructive unfair dismissal, sex discrimination and victimisation and was awarded damages in the sum of £832,711. The tribunal also held that the Chief Executive of the Trust had protected Mr Baines by allowing him to retire with his good name intact. Following the outcome, the Health Watchdog said they would be investigating the Trust to see if there were other issues with the way it was run.
For employers the case serves as a useful reminder that, aside from the reputational damage a case like this can cause, this type of decision is also likely to lead to difficulties with regulatory bodies.
Employers need to ensure they have a clear policy in place to deal with discrimination, harassment and victimisation in the workplace. The policy becomes obsolete if those in authority do not understand the policy or know what victimisation is. Providing training to managers and supervisors is fundamental to ensuring that discrimination does not take place. Communication with staff and the ability for employees to be able to discuss concerns freely with managers is vital.
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