£13.4m Switalski claim upheld; F&C to appeal
A challenge against an ex legal chief's multi-million pound discrimination claim has failed.
The challenge relates to Gillian Switalski’s claims of sexual discrimination, harassment and victimisation against F&C Asset Management, which was upheld by the employment tribunal in March (The Lawyer 11 March 2008)
Switalksi’s counsel, Suzanne McKie of Devereux Chambers, had successfully argued that F&C had overlooked her for management positions in favour of her colleagues.
McKie also argued that Switalski was unfairly scrutinised by her line manager when she took time off to look after her disabled son, comparing Switalski’s situation to that of a male employee who also had a child with special needs and was granted time off.
F&C sought to overturn the ruling at the employment appeal tribunal (EAT) on the basis that the tribunal had given a misdirection in the law in its original ruling.
However the EAT rejected all four points of F&C’s appeal, and said the employment tribunal had acted in accordance with the law.
This paves the way for Switalski’s remedy hearing, which will determine the extent of her compensation on 16th June.
It is understood that F&C could be forced to pay up to £13.4m to Switalski for earnings lost since the harassment began.
McKie was instructed by Withers partner Elaine Aarons.
McDermott Will & Emery partners David Dalgarno and Alison Weatherfield represented F&C, instructed Monica Carss-Frisk QC of Blackstone Chambers.
However F&C said it may yet appeal the EAT decision.
A statement released by the company read: "We continue to believe that the employment tribunal has misapplied the relevant legal principles and specifically that the findings that the claimant was treated less favourably based on her sex are incorrect.
"We will now consider seeking to have the case heard by the Court of Appeal.
Readers' comments (4)
Anon. | 23-May-2008 2:54 pm
Switalski
I can understand why it was appealed: it is worth a go when you have a figure of that size in dispute and appeals are relatively cheap.
In part it looks like the employment appeal judgment was loosely written, but this judgment shows just how difficult it is to appeal an employment tribunal decision.
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Anonymous | 23-May-2008 3:03 pm
Is this fair?
This raises some questions about whether there should be a separate tribunal set up for big value cases like this.
The tribunal clearly didn't do a good enough job in the first place, leaving one to wander whether it is qualified to deal with multi million pound claims.
Now F&C want to appeal again - how much longer can one person fight a multi-million pound corporation?
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Clive Howard, Russell Jones & Walker | 23-May-2008 3:09 pm
switalksi
Increasingly employment lawyers are trying to use technical arguments (in this case, the burden of proof) to overturn what in essence were the tribunal's findings on the evidence before them.
If the tribunal have concluded that, based on what they heard, the burden of proof did shift, appellate tribunals are going to be very reluctant to meddle with that.
On the money, the key question now is whether she can really be awarded that much (£13.4m+). This would be many millions of pounds more than any UK tribunal has ever awarded.
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Sue Peapal | 27-May-2008 11:36 am
Too much money
Naturally I feel sorry for anyone who has been forced to leave their job unfairly, but surely £13.4m compensation would be too much?
I don't know how much Switalski earned at F&C, but unless it was significantly more than a £1m a year, awarding a sum of £13.4m will make winning a suit a more attractive prospect for her than her simply having carried on working - even if that had been in a scenario in which there was no discrimination, but in which it would nonetheless take 13 long years of hard work to make the same amount.
I am not commenting on whether Switalski's claims of discrimination are valid - I don't work at F&C and couldn't possibly know - and I believe that everyone who is unfairly discriminated against should be compensated.
The danger is simply that if we overdo the compensation, others will seek to bring claims without good cause as a cynical ploy to get rich quicker than they would do by just working hard.
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