When an NHS manager innocently used the phrase ‘cracking the whip’ during a meeting, she had no idea it would trigger legal proceedings that would end up costing her employer — and the taxpayer — thousands of pounds.
But a nurse who heard the expression — which has its roots in farming — was horrified, believing it to have ‘connotations of slavery’.
The incident occurred in 2017, but nurse Vivienne Okoh didn’t resign until two years later. Ms Okoh, who is black, sued North East London Foundation Trust claiming she had been a victim of racial discrimination, harassment and victimisation by manager Caroline Ward.
Last year, an employment tribunal found against her, agreeing with the Trust that Ms Ward’s use of the phrase was not ‘deliberately offensive’.
Yet despite this, Ms Okoh was successful in a claim for unfair dismissal after the panel ruled that the Trust had taken too long to investigate her complaint. She is due to be awarded compensation. The discrimination element of her case, which might strike some observers as frivolous and absurd, neatly illustrates how Britain’s creaking and overloaded employment tribunals system is costing businesses and the taxpayer millions in legal fees and hefty compensation payouts, not to mention the countless hours spent dealing with the cases.
Leon Welling, 44, a van driver at Hallmark Catering Equipment Hire in London, texted Charmian Scott (pictured) to call her a ‘f****** ugly bent-tooth pikey’
Such is the avalanche of claims — which almost doubled from some 28,000 in September 2018 to more than 44,000 in July last year — that Lord Chancellor Robert Buckland is now hiring dozens of inexperienced judges, many of whom have never heard a case before, to preside over them, on salaries of £113,000.
An investigation by The Times newspaper this month found that the judiciary is undertaking its biggest recruitment drive for more than 400 years as judges desperately tackle the backlog.
Delays have become so protracted that one centre, the London South Employment Tribunal, is — astonishingly — taking an average of six years to process claims, according to Her Majesty’s Courts And Tribunal Service.
Half of the new judges, though qualified lawyers, have never sat before. One former solicitor’s only judging experience is of poetry competitions.
Why the sudden need for all the new and inexperienced judges?
Because employment has evolved to become one of the most complex areas in the legal system, covering everything from equality and discrimination to wages and unfair dismissal.
Nobody wants to see workers mistreated, but experts increasingly believe employers are facing a system loaded against them. Even if companies win, there is usually no way to recover legal costs from the complainant — typically a disgruntled employee. Fees can soar to £1 million on both sides.
DC Derrick Quarm (pictured) saw his most recent case against the Metropolitan Police for race victimisation dismissed in July
Meanwhile, the compensation cap for discrimination cases was removed by the European Court of Justice in 1993, meaning that payouts can reach stratospheric levels. In 2011, a Polish doctor was awarded £4.5 million in compensation from the NHS after being ‘hounded out of her job’ following her decision to have a baby. Whatever the merits of the case, that astronomical sum of taxpayer cash could have been spent on hospital equipment.
The route to this deeply messy situation has been long and painful. As prime minister, Edward Heath introduced ‘industrial tribunals’ in 1971 to allow badly treated workers to claim for unfair dismissal.
In 1998, Tony Blair’s administration expanded the system and changed the hearings to ‘employment tribunals’. Even then, a House of Commons research paper presciently warned of the risks of ‘a significant expansion in litigation by aggrieved workers and trade unions’, adding: ‘The Employment Lawyers Association has warned of the opening of the floodgates.’
Blair had intended a £100 fee for bringing a claim to a tribunal, but in 2001 bowed to pressure to drop the charge after unions decried it as a ‘tax on justice’. Fees were reintroduced in 2013 by then Lord Chancellor Chris Grayling, but in 2017 the Supreme Court ruled that they had been set too high, preventing people from being able to exercise their employment rights.
In 1998, Tony Blair’s (pictured) administration expanded the system and changed the hearings to ‘employment tribunals’
It was a landmark victory for the Unison trade union and its 1.3 million members. In the eyes of many, the result today is a claimants’ free-for-all.
HM Courts And Tribunals Service told the Mail: ‘There is no evidence to suggest vexatious claims are increasing. We’re taking action to reduce the backlog by investing £76 million to speed up our tribunals, install new video technology and recruit more judges.’
Yet last year, as thousands of workers were made redundant during the pandemic, employment tribunal claims soared 18 per cent to the highest levels since 2012. When the furlough scheme ends in April, this is expected to rise further. Many of the claims simply beggar belief, as our investigation reveals . . .
FEELINGS HURT IN COGNAC RAFFLE SWITCH
When workers at the five-star Lainston House hotel near Winchester, Hampshire, organised their staff party in 2017, they could never have imagined the drama that would unfold.
A prize raffle — with an expensive bottle of French cognac up for grabs — was won by Algerian linen porter Zakaria Kioua, 37. He had bought a ticket but was absent on the night. Mr Kioua’s colleagues, who were handing out the prizes, incorrectly believed he did not drink alcohol and ‘on the spur of the moment’ suggested he be given a box of chocolates instead.
When workers at the five-star Lainston House hotel (pictured) near Winchester, Hampshire, organised their staff party in 2017, they could never have imagined the drama
When Mr Kioua discovered what had happened, he accused the staff of ‘theft’. More than two years after the event, he resigned and launched a number of claims including victimisation, failure to make reasonable adjustments in respect of disability and constructive unfair dismissal. All were dismissed.
However, last September, a tribunal awarded Mr Kioua almost £2,300 compensation for ‘injury to feelings’ over the cognac incident, the judge concluding that the prize of chocolates was ‘offensive and caused him distress’.
LONDON COPPER WHO’S CLOGGING UP THE COURTS
A relentless detective has cost the taxpayer hundreds of thousands after launching no fewer than 13 failed employment tribunals.
DC Derrick Quarm, who is black, saw his most recent case against the Metropolitan Police for race victimisation dismissed in July.
Just two months later, it emerged he had lodged two further complaints against the force.
The 46-year-old, based in East London, is now appealing his 12th failed claim.
In 2018, the Met confirmed he was still a serving officer.
A judge ruled his claims were ‘totally without merit’, while a source told The Sun newspaper: ‘Ridiculous doesn’t quite cover it. He’s surely Britain’s most moaning police officer.’ There is no cap on the number of claims that someone can make against their employer.
But if a person is making multiple tribunal claims they could be considered a ‘vexatious litigant’ and, in rare circumstances, be prevented from making any further complaints. While DC Quarm has now launched two new claims, he doesn’t appear to have been awarded that title yet.
DC Derrick Quarm (pictured). The 46-year-old, based in East London, is now appealing his 12th failed claim. In 2018, the Met confirmed he was still a serving officer
FAILED INTERVIEW CANDIDATE DEMANDED £781k
Most people are disappointed when they fail to win a job after an interview — but few go as far as suing the company.
Yanping Li, 57, sought an eye-watering £781,000 for ‘racial discrimination’ in 2019 having lost out on a security officer post at Vision Security Group the previous year.
He claimed: ‘I said I like table tennis, which is the most popular sport in China . . .
‘This recruiting management team have no intention of promoting diversity of cultures within working environment.
‘They do not value people like me with Oriental cultural background . . . I felt extremely hurt and wounded . . . they were racially against me.’
He calculated his remarkable compensation sum on the basis that he had been deprived of potential annual earnings of £35,000 for 22 years, and would retire aged 80.
Central London employment tribunal found against him.
Rebecca Thornley-Gibson, employment law partner at DMH Stallard, noted that even this one-day hearing would have cost the company in the region of £10,000.
THIEVING DELIVERY DRIVER SAID HE WAS WRONGLY SACKED
A Polish delivery driver stole parcels from his employer — then sued for unfair dismissal after he was found out and sacked.
Mr R. Milczarek, whose first name does not appear on court documents, had been employed by Hermes as a night-time parcel delivery driver for years when, in 2019, the company conducted a random staff search at its Coventry depot.
A bottle of Viktor & Rolf designer aftershave worth £72 and mascara worth £22 were found in his bag.
The company said that these items were regularly handled in the depot.
Mr R. Milczarek, whose first name does not appear on court documents, had been employed by Hermes as a night-time parcel delivery driver for years when, in 2019, the company conducted a random staff search at its Coventry depot (file image)
Mr Milczarek was fired for gross misconduct. He claimed that he had been unfairly dismissed and brought a claim to Leeds Employment Tribunal.
He alleged that his wife had bought him the aftershave as a present, but when asked for a receipt he ‘claimed that Tesco did not give receipts’.
He added that he had found the mascara on the depot floor a month earlier, ‘picked it up and planned to return it but forgot’.
Employment Judge T. R. Smith dismissed Mr Milczarek’s claims of unfair and wrongful dismissal — but his frivolous legal action will nonetheless have cost his employer a great deal of time and money.
SEXIST VAN DRIVER CLAIMED SEX DISCRIMINATION
After a young female catering manager was appallingly insulted in a sexist, racist tirade by her older male colleague, it surprised many when he, not she, claimed sexual discrimination.
Leon Welling, 44, a van driver at Hallmark Catering Equipment Hire in London, texted Charmian Scott to call her a ‘f****** ugly bent-tooth pikey’ after she rejected his advances.
Ms Scott, who is about half Mr Welling’s age, complained to her bosses about being harassed by his texts seeking a date.
When he continued to message her and then became abusive, he was sacked.
Mr Welling claimed sexual discrimination, saying it was unfair that he was singled out as a man and that Ms Scott had been complicit in the messaging.
The company offered to settle out of court but the ex-driver refused. After a two-day hearing, he eventually lost his case, while Ms Scott quit her job.
‘The whole process was horrific and terrifying,’ she informed The Times. ‘I couldn’t believe that somebody was going to take him seriously . . .
‘I couldn’t understand how this man was going to be awarded money for something he had done wrong.
‘Where the hell is the justice?’