The uphill battle and intense stress in suing your employer is demonstrated by the high-profile Chagger v Abbey National plc & Hopkins (2006) legal case in the UK, where the Employment Tribunal found race discrimination and subsequently ordered Santander Abbey National to pay the record breaking 2.8 million compensation award. Abbey National Santander Group (the Spanish-owned UK high street bank which will soon be re-branded as Santander share price, and is part of the massive Banco Santander Group) terminated Balbinder Chagger’s employment in 2006, asserting redundancy as the reason. Mr Chagger believed that the real reason behind his dismissal was race discrimination. Santander Abbey National Group employed Mr Chagger (of Indian origin) as a Trading Risk Controller. He was paid about 100,000 per annum and he reported into Nigel Hopkins.
An employee who has suffered discrimination at work could decide to challenge his employer. The challenge may be initiated in the form of a formal grievance. The employee raises the grievance formally with the employer. The employer is responsible for hearing the grievance and deciding its outcome. The employer is, thus, given the opportunity to deal with the employment dispute and to bring it to a satisfactory end. The Employment Tribunal that heard the Abbey Santander price case found that Mr Chagger had attempted to resolve the issues around his dismissal directly with Abbey National and Mr Hopkins, via the company’s own complaints and grievance procedures. The Employment Tribunal also found, however, that Mr Chagger’s issues were simply dismissed out of hand.
If the employee remains dissatisfied with the employer’s handling of the grievance, then he must initiate legal action in order to persevere with his challenge. Mr Chagger, being dissatisfied with the outcome of his grievances, eventually initiated legal proceedings against both Abbey National Santander and Mr Hopkins on the grounds of race discrimination and unfair dismissal, thus, escalating the dispute to the attention of the Employment Tribunal.
An employer (especially a large and powerful organisation such as a major bank) is likely to be a formidable opponent for most employees, possessing vastly superior levels of financial resources, experience of dealing with disputes, legal expertise and plenty time to devote to the challenge.
In stark contrast, the employee will be relatively poor in financial resources, experience and legal expertise, will be hindered by personal circumstances and commitments, and have to make time to devote to the challenge while he also goes about discharging his obligation of mitigating his loss stemming from the discrimination he has suffered. He may also be further hindered by the low economic value of his challenge (the rewards less the costs), and be discouraged by the prospect of being shunned by prospective employers for having brought a legal action against an employer (whether he wins or loses).
The employer may exercise its superiority ruthlessly, without any remorse, in its attempts to coerce the employee into giving up his challenge for as little as possible. To persevere with legal action against such a formidable opponent requires the employee to possess an amazing level of resolve and lots of disposable cash.
Even though the employer might be holding significant advantages and be ruthless, a genuine challenge supported by appropriate evidence has the possibility to be successful, as shown by Mr Chagger who satisfied the Employment Tribunal that Mr Hopkins and Santander Abbey National had unlawfully discriminated against him on the grounds of race in his dismissal. In order to remedy the wrongs of race discrimination and unfair dismissal that Abbey Santander had committed, the Employment Tribunal ordered it to reinstate Mr Chagger. However, Santander Abbey refused to comply with the Employment Tribunal’s reinstatement order.
Despite Mr Chagger’s challenge being genuine and successful, his experience was that other prospective employers shunned him for having brought a legal action against an employer. This, along with Santander Abbey National’s refusal and failure to comply with the Employment Tribunal’s reinstatement order, subsequently led to the record breaking 2.8 million compensation award.
Even if the employee’s legal challenge is successful, the employer may appeal against the Tribunal’s decision and, thus, continue to prolong the employee’s challenge and to erode its economic value through additional legal costs. In 2008, Santander Abbey National and Mr Hopkins continued the legal case by appealing against the Employment Tribunal’s finding of racial discrimination and 2.8 million compensation award. The Employment Appeal Tribunal (EAT) that heard the appeals upheld the original Employment Tribunal’s finding that Abbey Santander and Mr Hopkins had racially discriminated against Mr Chagger in his dismissal. However, the EAT overturned the Employment Tribunal’s 2.8 million compensation award and sent it back to the original Employment Tribunal for reconsideration.
Even where the issue of the wrong committed has been closed off, the employer may continue to be ruthless in its handling of the issue of remedy/compensation. The Chagger v Abbey National plc & Hopkins case did not end at the EAT stage. This year, 2009, the case was appealed to the Court of Appeal (the second highest court in the UK). The Court of Appeal’s List of Hearings showed that the appeal was listed for hearing on 7 and 8 July 2009. The Court’s judgement and records of the hearing were not available at the time of writing this article. The King’s Walk Bench set of barristers’ chambers, who represented Santander Abbey and Mr Hopkins, had reported that the Court of Appeal hearing was only about compensation (not racial discrimination also). That would suggest that the wrong of racial discrimination committed by Abbey Santander and Mr Hopkins has been finalised by the EAT (which upheld the original Employment Tribunal’s decision that Santander Abbey National and Mr Hopkins had racially discriminated against Mr Chagger in his dismissal), and that Mr Chagger has appealed against the EAT’s decision to send back the 2.8 million compensation award to the Employment Tribunal stage for reconsideration.
As can be seen, winning a discrimination case against a powerful employer is far from easy: it is highly risky and intensely stressful, possibly spanning across many years. The employee should try to have regard for the economic value of his challenge and base his decisions with reference to it, because if the challenge is purely based on principles (no matter how admirable they may be) or spite, then he should prepare to lose lots of money.
