Suing Your Employer: The Uphill Battle
Author: Simon King

The intense struggle employees, who have suffered
employment related discrimination, can expect to experience
when challenging a powerful employer is somewhat
illustrated by the high-profile legal case Chagger v Abbey
National plc & Hopkins (2006). The Employment Tribunal
hearing the case found race discrimination and
subsequently made the record breaking £2.8 million
compensation award. Nigel Porter of 11KBW set of chambers
has reported that the case has escalated to the Court of
Appeal (the second highest court in the land), that it will
be heard this month (July 2009), and that the hearing is
only about compensation (not race discrimination also).

If an employee has suffered discrimination at work then he
could decide to challenge the employer. The challenge may
begin by the employee raising a formal grievance. The
employee lodges the grievance with the employer, who will
be responsible for hearing it and deciding its outcome.
Thus, the employer is given the opportunity to deal with
the dispute and to close it satisfactorily. Balbinder
Chagger, of Indian origin, earned about £100,000 per
annum and reported into Nigel Hopkins at Abbey National
(the Spanish-owned high street bank which is re-branding as
Santander from 2010, and is part of the Banco Santander
Group). In 2006, Abbey National dismissed Mr Chagger,
apparently for reasons of redundancy. The Employment
Tribunal noted that Mr Chagger had tried to resolve the
issues around his dismissal directly with Abbey National
and Mr Hopkins. However, the Employment Tribunal found that
his issues were simply dismissed out of hand.

Where the employee remains unsatisfied with the employer's
handling of the formal grievance then to continue with the
challenge requires the employee to initiate legal
proceedings. Mr Chagger finally initiated legal action on
the grounds of race discrimination and unfair dismissal
against both Abbey National and Mr Hopkins and brought the
matter to the attention of the Employment Tribunal.

For most employees, an employer (especially a large
institution like a major bank) is likely to be a formidable
opponent, possessing vastly superior levels of financial
resources, legal experience, expertise and ample time to
devote to the challenge.

In contrast, the employee will be relatively poor in
financial resources, experience and expertise, will be
encumbered by personal circumstances and commitments, and
have to make time to devote to the challenge while he also
mitigates the loss stemming from the discrimination. The
employee may be further encumbered by the economic value of
the challenge (i.e., the rewards less the costs), and by
the prospect of being shunned by other employers for having
brought legal proceedings against an employer (win or lose).

The employer will very likely exercise its superiority
ruthlessly, without remorse, in order to coerce the
employee into dropping his challenge for as little as
possible. To persevere with legal proceeding against a
formidable employer requires the employee to possess both
an amazing level of resolve and lots of spare money.

Although the employer may hold significant advantages and
be ruthless, a genuine case supported by sufficient
evidence has the possibility to be successful, as
demonstrated by Mr Chagger who satisfied the Employment
Tribunal that both Abbey National and Mr Hopkins had
unlawfully discriminated against him on the grounds of
race. In order to remedy the unlawful wrong that it had
committed, the Employment Tribunal ordered Abbey National
to reinstate Mr Chagger (a step Tribunals rarely ever
take). Abbey National refused to comply with the
Tribunal's order.

Even though Mr Chagger's case was genuine and successful,
his experience was that other prospective employers shunned
him for having brought legal proceedings against an
employer. This, along with Abbey National's failure to
comply with the Tribunal's reinstatement order, eventually
led to the record £2.8 million compensation order on
the basis of career loss.

Even if the employee's challenge succeeds, the employer is
likely to appeal against the Tribunal's decision, thus,
continuing to apply pressure ruthlessly and eroding the
economic value of the challenge. Mr Hopkins and Abbey
National continued the case by appealing against the
Tribunal's finding of race discrimination and compensation
award. The Employment Appeal Tribunal (EAT) upheld the
Tribunal's finding that Mr Chagger had been discriminated
against on the grounds of race. The EAT overturned the
Tribunal's compensation award of £2.8 million,
remitting it (sending it back) to the original Employment
Tribunal for reconsideration.

Even where the issue of liability (the wrong committed) has
been closed off, employers are likely to continue to be
ruthless in their handling of the issue of quantum (the
compensation). Tt would appear that Abbey National and Mr
Hopkins have not appealed against the EAT's decision that
they had discriminated against Mr Chagger (their wrong of
discrimination seems to have been finalised), and that Mr
Chagger has appealed against the EAT's decision to remit
the compensation for reconsideration.

Winning a discrimination case against a powerful employer
is far from trivial: it is risky and highly stressful,
possibly over a prolonged time period. From a financial
perspective, the employee should have regard for the
economic value of his challenge; if the challenge is based
purely on principles (however admirable), or spite, then he
should prepare to lose lots of money.


About the Author:

Abbey National plc & Hopkins v Chagger [2008]
http://www.bailii.org/uk/cases/UKEAT/2008/0606_07_1610.html
Reputational Risk
http://www.submityourarticle.com/articles/Simon-King-5609/Ab
bey-60926.php