In a warning to employers that just one discriminatory comment can have dire consequences, the Court of Appeal has upheld a six-figure compensation award to a secretary whose line manager told her that women take things more emotionally than men (BAE Systems (Operations) Limited v Konczak).

Marion Konczak began working for BAE Systems (Operations) Limited as a secretary in 1998 and was made a permanent member of staff the following year. She had complained of bullying and sexual harassment by members of her team but felt that her complaints were not being taken seriously. On 26 April 2006, after a tearful meeting with her manager, he informed her that men tend to forget things and move on more easily than women.

Mrs Konczak was absent the next day and was certified by her GP as unfit to work on account of work-related stress. She never returned to her job after that and was eventually dismissed in July 2007.

An Employment Tribunal (ET) subsequently upheld her sex discrimination claim in respect of the manager’s comment. Her complaints of unfair dismissal and victimisation were also upheld and she was awarded total damages of £360,179. That decision was later upheld by the Employment Appeal Tribunal.

In challenging the award, the company pointed out that Mrs Konczak had made 15 other, unsuccessful complaints of sex discrimination and contended that the award in respect of a single sexist comment was grossly excessive and an affront to justice. In the course of her work she had experienced numerous other adverse and stressful events that might have contributed to her illness and there was also said to be evidence that she suffered from a diagnosable mental illness even before the comment was made.

The Court accepted that the manager’s comment appeared to have been made in a clumsy attempt to express sympathy with Mrs Konczak. The ET’s finding that the words he spoke were the final straw that pushed her over the edge into mental illness may possibly have been over-generous.

However, in dismissing BAE Systems’ appeal, the Court rejected arguments that that conclusion was perverse. There was nothing inherently unjust in the ET applying the basic rule that a defendant must take the claimant as he finds them, ‘eggshell skull’ or vulnerable personality included, and having a vulnerable personality should not result in any reduction in the amount of compensation payable. The evidence was that Mrs Konczak had not consulted her doctor about her mental health at any point in the two years prior to 26 April 2006. The ET had accepted the evidence that it was the comment made by her manager that had pushed her over the edge into a diagnosable mental illness, as it was entitled to do.

The Court also noted that Mrs Konczak had suffered from mental ill-health throughout the proceedings, which had involved a total of eight tribunal hearings and lasted almost a decade.

A sexist remark of the type that was made in this case can be just as detrimental to an employee as overt harassment and discrimination. It is therefore important to take seriously any complaints made by employees and to train managers and supervisors to improve awareness of what constitutes ‘low-intensity’ sexism. Contact us  for advice on any discrimination law matter.

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