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In Macken v BNP Paribas London Branch [2021] 10 WLUK 640, the Employment Tribunal ordered the bank BNP Paribas (“the Bank“) to pay compensation to Stacey Macken, who was successful in her claims for equal pay, sex discrimination, and victimisation.
Factual background
Ms Macken was hired by the Bank in January 2013 for a junior role with a salary of £120,000 per annum. A male colleague (“Comparator 1”) with the same role began their employment with the Bank in July 2013, with a salary of £160,000 per annum. Over a five-year period, Comparator 1 received about £237,000 in bonuses while Ms Macken was offered just £33,000. Ms Macken repeatedly raised concerns that she was paid less than Comparator 1, but the Bank failed to address these complaints.
Ms Macken also experienced sexist incidents at the Bank. On one occasion she arrived to find a witch’s hat had been left on her desk by drunk male colleagues which made her visibly upset and uncomfortable working with them. Another colleague would repeatedly reply to Ms Macken’s questions with ‘Not now, Stacey’, an approach that other colleagues then adopted. Further, a senior colleague referred to the roleplay his friend had engaged in with his wife.
Following the Bank’s failure to adequately address Ms Macken’s pay complaints, the relationship between Ms Macken and her manager deteriorated. Ms Macken raised a grievance and appealed the outcome of this, which the Bank just used to justify its position rather than genuinely investigating and resolving the issues raised.
Ms Macken then went on to make a claim to the Employment Tribunal.
Tribunal decision
The Employment Tribunal upheld Ms Macken’s claims for direct sex discrimination, victimisation, and equal pay in 2019.
Ms Macken was successful in her claim of sex discrimination in relation to the award of bonuses. Comparator 1 received more in bonuses every year, which the Bank sought to justify on the basis of performance ratings. In Ms Macken’s case, it was found that her deteriorating performance reviews were victimisation and based on the breakdown of the working relationship with her manager. This was because of her complaints of discrimination and unequal pay.
In raising her concerns about equal pay throughout her employment, Ms Macken made a number of protected acts for which she was then belittled by her manager and received hostile performance reviews. All of these amounted to acts of victimisation.
With regards to equal pay, the Bank tried to use the “material factor defence” to justify Comparator 1 being paid more, on the basis that he needed to be enticed away from his previous employer. This was rejected and the Tribunal found that the main factor in the pay differential was that Ms Macken was treated as a junior hire and Comparator 1 was treated as a senior hire, and that was attributable to gender.
In February 2022, at a remedy hearing, the Tribunal awarded Ms Macken £2.08 million. This included:
- £402,000 as an equal pay award
- £213,000 for personal injury
- £860,000 for future earnings
- £123,000 in additional compensation which includes higher awards for injury to feelings and aggravated damages
There was also a further £317,000 in uplift added to this total due to the Bank’s unreasonable failure to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures.
Of particular note was that the Tribunal also ordered the Bank to complete an equal pay audit and report on gender pay by 30 June 2022.
Notes for employers
This is a case that has been reported on widely due to some attention-grabbing details which were not, in fact, central to the Tribunal’s decision, and the large compensatory award given to Ms Macken.
Employers must be aware that, whilst they may have good policies in place, it is vital that employees are aware of, and adhere to, these policies. Regular and effective training for managers, in this case, may have allowed the Bank to contend that it had taken reasonable steps to stop any discriminatory behaviour from its employees and should not be liable.
Finally, grievances should be responded to seriously and fully investigated. In this case, it is arguable Ms Macken would not have been awarded such an eye-watering sum had her grievance been dealt with properly and objectively.
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