Case Law - Employment in the Financial Sector

Stacey Macken v BNP Paribas is a case that has received a huge amount of media attention this year, and for good reason, a former city banker won over £2 million for a successful sex discrimination claim. Although high-profile High Court cases can often lead to huge financial rewards, compensation on this scale is very rare in the Employment Tribunal.

The Claimant worked in the Prime Brokerage division of the Respondent, an international investment bank. The facts of this claim have been largely reported but in short, during a four-year period between 2013 and 2017, the Claimant:

• received a significantly lower annual salary than her peers;
• received significantly lower bonuses and worse appraisals than her peers;
• was told “not now, Stacey” by her manager so frequently that other colleagues started to mimic the phrase; and
• experienced unwanted conduct from male colleagues, including finding a black witch’s hat left on her desk after a group of colleagues had gone out for drinks.

The Claims

The Claimant bought:

• an equal pay claim on the basis that she received a lower annual salary than four male comparators who carried out “like work” in accordance with s66 EqA;
• a direct sex discrimination claim under s13 EqA in respect of her bonus payments and appraisals which were significantly lower than her male comparator;
• a victimisation claim in relation to her treatment by her manager and colleagues after she raised concerns about equal pay (s27 EqA); and
• harassment related to isolated incidents such as her desk being moved and comments she received from her male colleagues (s26 EqA).

Key Findings

The Claimant was successful in her equal pay claim against one of the male comparators. The Tribunal found that although the Claimant and this comparator were hired months apart to carry out the same role, this comparator received an annual salary of £160,000 whereas the Claimant had an annual salary of £120,000. Whilst the Respondent’s response was that the Claimant was junior to her male colleague (despite their identical job titles) the evidence provided showed the Claimant to be experienced having previously worked at another investment bank, so any internal classification of her as being junior to her comparator were likely because of gender.

The Claimant was also successful in her direct discrimination claim on the basis that her male comparator received a higher bonus than her and a bonus that increased every year as opposed to remaining static. The Respondent sought to argue that the bonus was performance-related, and the Claimant was not performing at the same level as the male comparator. However, the Claimant’s performance reviews were not as positive as her male comparator as a result of sex discrimination. Male comparators received comments relating to their personality and being a “good cultural fit” whereas these types of comments were not used to describe the Claimant.

The Tribunal also upheld the Claimant’s victimisation claim in relation to the deterioration of the relationship between the Claimant and the wider team, including her manager, after she initially raised concerns about equal pay. The phrase “not now, Stacey” was used frequently and was held to be rude and dismissive of the Claimant. In addition, her performance reviews suffered and the Respondent’s approach to her grievance and grievance appeal was not deemed to be genuine.

Whilst the Tribunal did not uphold the Claimant’s harassment claim, it did consider that isolated incidents such as leaving the witches hat on her desk, were inherently sexist, in a predominantly male environment.

Remedy

It is perhaps unsurprising to learn that a female investment banker in a male-dominated environment experienced discrimination. What has really made this claim such a talking point is the remedy.

In response to the Claimant’s successful equal pay, discrimination and victimisation claims, she received £2,081,449. This is one of the largest awards ever made by an Employment Tribunal and it included:

• £857,044.01 in respect of the loss of the Claimant’s future earnings;
• £15,000 for aggravated damages;
• £35,000 for injury to feelings; and
• A 20% uplift in respect of the Respondent’s unreasonable failure to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures.

The Tribunal also made a recommendation that the Respondent carry out an equal pay audit.

Comment

The first and most important thing to note is that compensation awards in the Employment Tribunal are rarely this high. The large salaries and bonuses involved in this claim are what led to such substantial awards. Additionally, the Claimant was on a period of sick leave so the Tribunal sought to compensate her for loss of earnings. Similarly, the conduct of the Respondent, including the unwillingness of the Claimant’s manager to issue a genuine apology and the failure of the Respondent to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures led to significant uplifts. So, even though the figures in this case were eye-catching, this will not necessarily be the case every time.

It is also worth noting that the events in this claim took place between 2013 and 2017. We live in a very different world now. Regulators are now committed to DEI. Earlier this year the FCA finalised rules requiring listed companies to report on the representation of woman and ethnic minorities on their boards and executive management teams. The FCA and PRA also published a discussion paper in 2021 to set out their thoughts on diversity and inclusion within the financial sector. This push from regulators means that DEI is now more at the forefront of decision-making in regulated firms. That is not to say that discrimination and victimisation in regulated firms will become a thing of the past, but rather that employers are more aware of the issue. If you are looking to improve diversity and inclusion in your own firm you might to consider reviewing your Equal Opportunities Policy and implementing employee networks, mentoring and encouraging employees to speak up.

The regime means that firms are required to annually assess fitness and propriety, including assessing compliance with the firm’s code of conduct. Had these events taken place this year, the Respondent would have been forced to assess the conduct of the employees involved and we might have seen a different outcome.

One point that comes up again and again in discussion around DEI is how to address how well a person integrates with their team. The fact that recruitment notes and appraisals of the Claimant’s comparators made references to their personalities, including being a “good cultural fit” was noted by the Tribunal. The “inclusion” element of DEI means that a work-environment should be an inclusive environment for all types of workers, including women and minorities. Certain groups of employees are less likely to join an after-work pub trip or participate in “workplace banter” and it is important that this does not negatively affect their performance reviews.

Training is also crucial. Under SM&CR, Senior managers should receive annual compliance training on the FCA conduct rules and it is recommended that certified staff also receive regular training. The SYSC section of the FCA Handbook also recommends whistleblowing training. It is therefore important to keep on top of training and ensure that employees understand their regulatory obligations and the types of behaviour that could be in breach of these obligations.

Sources

S Macken v BNP Paribas London Branch: 2208142/2017 and others - GOV.UK (www.gov.uk)

Although even the regulators can get it wrong! As happened in the case of Cunningham v FCA 2019.

In this case, an Employment Tribunal ruled that the FCA discriminated against an employee under section 15 EqA because of his disability after he was given a poor appraisal score because of his performance. The Claimant had been diagnosed with renal problems and by April 2017 he was suffering from ‘extreme tiredness’, according to a note from his doctor. The FCA reduced his hours accordingly and in June 2017 the Claimant commenced a period of sick leave and did not return to the FCA until February 2018. The same month, he attended his annual appraisal meeting where he was awarded a score of one, meaning ‘below standards’. The tribunal found that his poor performance was linked to his kidney disease and concluded that ‘The discriminatory effect is considerable; because of his illness he performs poorly and because he performs poorly, he does not get a pay rise, does not get a bonus and loses the prestige of being regarded as a good performer.’