Wardle v Crédit Agricole Corporate and Investment Bank (Known as Calyon UK)

Compensation for discriminatory dismissal must reflect the loss actually caused by the dismissal. A tribunal should not apply overlapping discounts where one factor does not affect the claimant’s counterfactual earnings. Future loss may be assessed by reference to realistic chances, even where the exercise involves uncertainty and includes a possible career-long element. Where the risk of future loss changes over time, a sliding scale should be used. Aggravated damages require additional injury caused by particularly reprehensible conduct and must not duplicate injury-to-feelings damages or a statutory uplift. Under section 31(3) of the Employment Act 2002, a tribunal must give reasons for an uplift above 10 per cent and must ensure that the uplift remains proportionate to the breach.

Mr Wardle had been discriminated against when he was not appointed to a senior banking post because the preferred candidate was French. His subsequent dismissal was found to be an act of victimisation and unfair because the bank failed to follow the standard dismissal and disciplinary procedure in Part 1 of Schedule 2 to the Employment Act 2002.

The Employment Tribunal awarded £374,921.62, including future earnings, pension loss, injury to feelings, aggravated damages and a 50 per cent statutory uplift. Both parties appealed against the assessment of compensation. The Employment Appeal Tribunal considered the proper treatment of future contingencies, pension contributions, aggravated damages and the statutory uplift.

Both appeals were allowed in part. The Employment Appeal Tribunal varied the compensation assessment and remitted the case only for calculation of the resulting figures if the parties could not agree.

1. Future earnings. The purpose of compensation was to place Mr Wardle in the position he would have occupied absent discrimination. The 80 per cent discount from April 2010 was erroneous. If he had changed jobs, he would have moved only to employment offering remuneration no worse than the counterfactual bank employment. The fact that he might have left the bank therefore did not itself reduce the loss.
2. A tribunal must assess realistic chances rather than decide future events solely on the balance of probabilities. Uncertainty and speculation do not prevent an award where the evidence permits a sensible prediction. A measure of career-long loss was open on these facts. The Tribunal’s 70 per cent discount for 2012 onwards was retained for 2012–2015, increased to 85 per cent for 2016–2019, and increased to 92.5 per cent for 2020–2024 to reflect a sliding scale of improving chances of achieving remuneration parity.
3. Pension loss. The correct pension loss was 12 per cent of basic salary to May 2015 and 14 per cent thereafter. The calculation had to account for the employer’s basic contribution, the employee’s contribution and the employer’s matching contribution, together with the increased employer contribution after ten years’ service.
4. Aggravated damages. The award of £5,000 was set aside. Sudden dismissal, summary dismissal and victimisation did not, without more, establish high-handed, malicious or oppressive conduct. The Tribunal had also failed to identify conduct distinct from matters already compensated by injury-to-feelings damages and the statutory uplift.
5. Statutory uplift. The maximum 50 per cent uplift was replaced by 10 per cent. Section 31(3) of the Employment Act 2002 required a mandatory 10 per cent increase, with a reasoned discretion to award more where just and equitable. The Tribunal could treat the nominal completion of the appeal stage as substantive non-compliance, and could apply the uplift to the whole award because the discriminatory promotion decision and victimising dismissal were substantially linked. Nevertheless, an uplift approaching £90,000 was disproportionate to the breach.
6. The parties were left to calculate the award using the correct number of years to the end of 2024. The case was remitted to the same Employment Tribunal, if possible, only if agreement could not be reached.

• Employment Tribunal: Found discrimination, victimisation and unfair dismissal, and awarded compensation of £374,921.62.
• Employment Appeal Tribunal: Varied the future-loss discounts, pension-loss calculation, aggravated-damages award and statutory uplift. The case was remitted only for calculation if the parties could not agree.