If a worker and an employer cannot settle an employment dispute informally between themselves, then the worker may take on the employer formally. But what is it like to take on a formidable opponent? Clues are found in the UK landmark employment race discrimination case Chagger v Abbey National & Hopkins.
Abbey National is the UK high-street bank now known as Santander UK, featuring Lewis Hamilton (F1 driver) in its marketing campaign and sponsoring the Formula 1 McLaren Mercedes team. The bank was re-named as Santander UK in January 2010. The new name was unveiled in London by Lewis Hamilton, joined by Emilio Botin (the Banco Santander chairman).
Emilio Botin's Abbey Santander UK dismissed Balbinder Chagger from his job in 2006. It claimed the dismissal was the result of a fair redundancy exercise.
Balbinder Chagger, however, alleged that the actual reasons behind his dismissal were breach of contract, unfairness and race discrimination. He was of Indian origin, earned around £100,000 per year working as a Trading Risk Controller, reporting into Nigel Hopkins, his manager.
In 2006, an Employment Tribunal found that Abbey Santander UK had committed a breach of employment contract and an unfair dismissal, and had racially discriminated against Mr Chagger. The Employment Tribunal ordered Abbey Santander UK to re-employ Mr Chagger to lessen the impact of the dismissal on him. However, Abbey Santander UK refused to comply with the Employment Tribunal's order. The Employment Tribunal then went on to order Abbey Santander UK to pay Mr Chagger the record-breaking £2.8 million compensation award for his loss.
The worker may pursue the dispute as a formal grievance against the employer, usually by spelling out his issues and what he wants done about them in a formal grievance letter. The employer is responsible for looking into the issues and also for deciding whether to uphold the worker's grievance or to dismiss it. The employer, therefore, gets the first chance to deal with the dispute and to bring it to a satisfactory closure. However, an employer may not wish to formally uphold the worker's grievance because that would mean admitting to its own wrongful acts; therefore, it may, instead, mis-use the grievance procedure to intimidate the employee into dropping his dispute. The Employment Tribunal hearing the Abbey Santander UK case found that Mr Chagger had tried to address the issues around his dismissal directly with Nigel Hopkins and Abbey Santander UK but his grievances were not taken seriously and not investigated promptly; they were simply dismissed out of hand.
If the worker continues to remain dissatisfied with the employer's decision about his grievance, then he has no option but to consider legal action through the Employment Tribunals to continue to address his issues. Balbinder Chagger eventually initiated legal action against both Abbey Santander UK and Nigel Hopkins by taking the issues of unfairness, racial discrimination and breach of contract to the Employment Tribunal for an independent judgement.
A large and powerful organisation, like Abbey Santander UK, will be a formidable opponent for most workers to take on. Such an employer will have immense financial power, ample expertise in dealing with disputes, easy access to legal skills and knowledge, and plenty of time and staff to dedicate to the dispute.
In stark contrast, the worker will be financially poor, inexperienced in handling disputes, and lack legal skills. Furthermore, he will also be held back by the usual personal circumstances and responsibilities that all individuals face (like meeting living expenses, managing relationships and providing for dependents), and will struggle to find the time needed to bring the employer to account (particularly while he also goes about trying to mitigate the impact of the wrong he has suffered). And even furthermore, he may also be scuppered by the low financial value of his dispute (the financial compensation the Employment Tribunal may award him minus the legal costs of pursuing his challenge, which may be significant and are not normally paid by the employer even if the worker wins). If all that is not enough, he may also be scuppered by the prospect of being shunned by other employers for having taken legal against a fellow employer, even if his case was genuine and had won.
A large employer, like Abbey Santander UK, may exercise its power ruthlessly and without any apparent remorse, in order to create as much difficulty as possible for the worker and to coerce him into giving up his dispute for as little value as possible (if not for free). The employer will have the financial strength and luxury of time to deploy tactics designed to increase the worker's legal costs, cause delays and frustration, increase hardship and stress, and so on.
Only a worker who possesses an amazing level of inner-strength and determination, along with plenty of spare cash, will be able to take on such a formidable opponent. Mr Chagger has shown that even though an employer may be immensely powerful and ruthless, a genuine case can be won; he successfully brought Abbey Santander UK (one of the largest banking groups in the world) and Nigel Hopkins to account and satisfied the Employment Tribunal with appropriate evidence that they had racially discriminated against him and dismissed him unfairly. And in the process of doing so, his case has made UK history, creating several new legal precedents and setting a new record for compensation awarded.
Even when a powerful employer has been found to have committed a wrong, it may still choose to continue to make life difficult for the worker. For example, the Employment Tribunal ordered Abbey Santander UK to re-employ Mr Chagger in order to put right the wrongs it had committed (re-employment avoids the need for the worker to be compensated financially and is the UK's preferred solution). However, Abbey Santander UK refused to comply with the Employment Tribunal's order, giving reasons that the Tribunal considered to be unsatisfactory.
And if the worker wins at the Employment Tribunal stage, that does not necessarily mean the end of his ordeal; a powerful employer can afford to appeal against the Employment Tribunal's judgement, and hold back paying the worker any of the compensation that was awarded until its appeal has been heard and settled. The effect of this will be to prolong the worker's hardship and stress by exposing him to continued legal costs, and thereby further eroding the financial value of his dispute. In 2008, Abbey Santander UK and Mr Hopkins appealed to the Employment Appeal Tribunal (EAT) against the judgement of racial discrimination made by the Employment Tribunal. The EAT heard the appeal and rejected it; it upheld the original Tribunal's judgement that both Abbey Santander UK and Mr Hopkins had racially discriminated against Mr Chagger. Abbey Santander UK and Mr Hopkins had also appealed against the record-breaking £2.8 million compensation that had been awarded. The EAT accepted this appeal and sent the compensation back to the original Employment Tribunal for reconsideration.
Even when an employer has been found to have committed a wrong, it may continue to be ruthless in its handling of the solution. For example, in October 2008, following the EAT's judgements, the Financial Times newspaper reported that Abbey Santander UK said it was thinking about appealing further and expected to present a "strong case" to reduce the compensation that had been awarded.
In 2009, Mr Chagger appealed to the UK Court of Appeal against the EAT's judgements regarding the compensation that had been awarded. The Court of Appeal upheld some of Mr Chagger's appeal, on the basis that the EAT had made errors of law and had made absurd decisions. However, it upheld the EAT's judgement that the compensation should be sent back to the original Employment Tribunal for reconsideration.
Emilio Botin's Abbey Santander UK and Nigel Hopkins did not appeal to the Court of Appeal against the EAT's ruling on race discrimination; they appear to have conceded that they had racially discriminated against Mr Chagger.
The Chagger v Abbey Santander UK case shows that, for a worker, taking on a powerful employer is not at all easy; it is highly risky and loaded with extreme levels of emotional and financial hardship, possibly over a duration of many years.
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