Is it Worth Challenging Your Employer insights from Emilio Botin Abbey Santander shares price

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Published: 30Sep2009
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Useful insights into whether challenging your employer is worth pursuing or not are provided by the high-profile legal case Chagger v Abbey National plc & Hopkins (2006), in which the Employment Tribunal found race discrimination and, subsequent to Emilio Botin Abbey Santander banking group's refusal to reinstate Mr Chagger, ordered Abbey Santander to pay Mr Chagger the record £2.8 million compensation award for his loss. Abbey Santander shares price (the UK retail bank soon to be re-branded as Santander share price, and being part of the gigantic Emilio Botin Banco Santander Central Hispano group BSCH) dismissed Mr Chagger from employment in 2006, giving 'a fair compulsory redundancy' as the reason. Mr Chagger, on the other hand, believed that the real reason behind the termination of his employment was rooted in race discrimination. Balbinder Chagger was of Indian origin, worked as a Trading Risk Controller for Abbey Grupo Santander price, earning around £100,000 a year and reporting into Nigel Hopkins.

If an employee and employer cannot resolve an employment dispute informally between themselves, then the employee may challenge the employer through formal channels. The formal challenge will often be initiated as a formal grievance against the employer, in the form of a formal grievance letter. The employer is responsible for coordinating an investigation into the grievance letter and deciding the outcome. The employer is, thus, given the chance to deal with the employment dispute first and to bring it to a satisfactory end. However, an employer may not admit to its wrong doings and formally rule in favour of the employee; instead, the employer may use the grievance procedure to intimidate the employee into dropping his challenge. The Employment Tribunal that heard the Abbey Santander case discovered that Mr Chagger had tried to resolve the issues around his dismissal directly with Mr Hopkins and Abbey Santander and that his grievances were neither taken seriously nor investigated promptly, and were simply dismissed out of hand.

If the aggrieved employee remains dissatisfied with the employer's handling of the grievance, then he has no option but to pursue legal action to continue to challenge the employer. Mr Chagger eventually initiated legal action against both Santander Abbey and Mr Hopkins, on the grounds of unfair dismissal and racial discrimination, and took the issues to the Employment Tribunal for independent adjudication.

A large and powerful employer, like a major multinational institution, will be a very formidable opponent for most aggrieved employees. The employer will possess vastly superior financial power, experience of dealing with disputes, access to legal expertise and ample time and personnel to dedicate to the challenge. In contrast, the employee will be poor in financial power, experience, and legal knowledge. He will also be held back by personal circumstances and responsibilities that all individuals face (such as living expenses, relationships and dependents), and struggle to make the adequate time necessary to deal properly with bringing the employer to account, while he also goes about trying to mitigate his loss emanating from the wrong he has suffered. He may also be scuppered by the low financial value of his challenge, being the financial compensation the law may award him for his loss less the legal costs of pursuing his challenge (legal costs may be significant and are not normally recoverable even if the employee's case is successful). He may also be scuppered by the prospect of being shunned by prospective employers for having brought legal proceedings against a fellow employer, even if his case was genuine and had been successful.

The employer may wield its superiority ruthlessly, without remorse, with the aim of scuppering the employee and coercing him into dropping his challenge for as little value as possible, if not for nothing. The aggrieved employee can expect a carefully considered campaign of tactics designed to deplete his resources, tactics that increase his legal costs, cause delays, cause frustration, increase hardship, increase stress, and so on. Only an employee possessing an amazing level of inner-strength and resolve, as well as lots of disposable cash, will persevere with challenging such a formidable adversary.

Although the employer may hold all the advantages and be ruthless, a genuine case can be successful, as Mr Chagger demonstrated by satisfying the Employment Tribunal with appropriate evidence that both Santander Abbey and Mr Hopkins had dismissed him by racially discriminating against him.

When an employer has been found to be at fault, it may still decide to behave negatively and continue to make life difficult for the aggrieved employee. For example, to remedy the wrongs Abbey Santander had committed, the Employment Tribunal ordered Abbey Santander to reinstate Mr Chagger. Reinstatement avoids the need for financial compensation, is the UK's preferred remedy, and Mr Chagger had opted for it. However, Santander Abbey refused to comply with the Employment Tribunal's order, giving reasons that the Employment Tribunal found to be unsatisfactory. Although Mr Chagger's case was genuine and successful, and he had no other option but to pursue legal action, he believed that he was unable to find further employment because prospective employers shunned him for brought legal action against a fellow employer; he had applied unsuccessfully for 111 jobs. Reinstatement would have solved Mr Chagger's problem of having to find alternative employment. The Tribunal eventually ordered Abbey Santander to pay Mr Chagger £2.8 million to compensate him for his loss on the basis that he had not been reinstated.

An employee's success at the Employment Tribunal stage does not necessarily signify the end of the matter; the employer may appeal against the Employment Tribunal's decisions, and hold back paying the compensation award. The effect of such action will be to prolong the employee's hardship and stress by exposing him to more legal costs, which he has to fund from his own resources, and by further eroding the financial value of his challenge. In 2008, Emilio Botin Santander Abbey and Mr Hopkins appealed to the Employment Appeal Tribunal (EAT) against the race discrimination ruling made by the Employment Tribunal. The EAT rejected the appeal and upheld the original Tribunal's finding that both Emilio Botin Santander Abbey and Mr Hopkins had discriminated against Mr Chagger. Santander Abbey and Mr Hopkins had also appealed against the £2.8 million compensation awarded. The EAT accepted this appeal and ruled the compensation to be sent back to the original Employment Tribunal for reconsideration.

Even when the issue of liability (the wrong committed) is finalised, the employer may continue to be ruthless in its handling of the remedy. Following the EAT's judgements, in October 2008 the Financial Times newspaper reported that Abbey said it was considering a further appeal and expected to present a "strong case" on reduced compensation. The case was escalated to the Court of Appeal, UK's second highest court. The Court of Appeal's List of Hearings showed that the case was heard on 7 and 8 July 2009. The Court's judgement records were not available when writing this article. The 11KWB set of barristers' chambers, who represented Abbey Santander and Mr Hopkins in the appeal, had reported prior to the hearing that the Court of Appeal hearing was to be about compensation only (i.e., not about liability also). That seem to suggest that Emilio Botin Santander Abbey and Mr Hopkins did not appeal against the ruling of race discrimination and that the wrong of racial discrimination it committed was finalised by the EAT when it upheld the original Tribunal's finding that Abbey Santander and Mr Hopkins had racially discriminated against Mr Chagger. It would also seem to suggest that Mr Chagger had appealed against the EAT's decision to send back the compensation award to the Tribunal stage for reconsideration.

Clearly, challenging a powerful employer is far from easy; it is very risky and fraught with stress and hardship, probably over a period of many years. The aggrieved employee may do well to make decisions based on the financial value of his challenge; if his challenge is based purely on principles (however admirable) or on spite, then he is likely to end up losing a lot of money, in addition to undergoing extreme stress and hardship.

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