Pay up, save thousands and avoid the bad publicity that’s the standard advice when faced with a claim for constructive dismissal on the grounds of racial discrimination. I am sure that was the advice given by legal and HR to an NHS Trust, they didn’t take it and were forced to pay a former manager £1 million. The damage to the organisations reputation as the national media focused on the headline grabbing size of the award can’t be measured.
There is no upper limit on the size of an award in such cases. Tempting then to do a deal but that would mean admitting racial discrimination. The legal team would say it doesn’t mean this at all, it’s a simple financial calculation. We may have done nothing wrong, we may be confident we can successfully defend this case but there is a cost to defending this allegation in management time and legal fees so if it costs less to settle than defend then settle.
The complaint doesn’t want to settle it’s a matter of principle they want to expose the hypocrisy of grand sounding equal opportunity statements with the reality of workplace prejudice and discrimination. Mangers don’t want to settle they feel they have done nothing wrong, that the employee is upset because they didn’t get a job or a promotion and just can’t accept they weren’t good enough. Managers expect the organisation to back them.
In the end it will be a financial decision. Most people take the money. We only hear about the ones who don’t and who win.
But any organisation that doesn’t employ a workforce that reflects the local population profile, that has a disproportionate number of staff from ethnic minority groups in basic grade posts and few black staff in senior posts, an organisation that takes proportionately more disciplinary action against black staff is going to be vulnerable to claims of racial discrimination. An organisation that does not collect data in these areas broken down into ethnic origins will have difficulty evidencing there polices don’t discriminate. Likewise an organisation that collects the data and doesn’t act upon it can expect to pay the price.
www.blairmcpherson.co.uk author of An Elephant in the Room –an equality and diversity training manual published by Russell House
