Insult and injury - how much is 'fair' compensation?

8 April 2015

Last night, I read two very different stories in the London Evening Standard. The first was in relation to an unfair dismissal claim from a banker, and a good example of our justice system working well. The other story told of a young boy who died in a workplace accident, and left me feeling very frustrated with the limitations of our legal system. 

The front page story was about a woman who had been awarded £2.8m by the Central London Employment Tribunal. Svetlana Lokhova was a former banker at Sberbanck CIB (UK) Limited who claimed that she was “constructively dismissed” – i.e. forced to resign her job as a result of a campaign of harassment, victimisation and discrimination, which had been led by a former colleague at the bank. He had also made false allegations about Ms Lokhova having an illegal drug habit, and those accusations were repeated by the legal team during the tribunal hearing.

In its judgment the Tribunal was very critical of the bank, and accepted that Ms Lokhova was suffering from a moderately severe psychiatric illness with chronic long term symptoms that would prevent her from returning to banking. The award was based on injury to health and feelings, future financial loss and aggravated damages for the drug allegation made at the hearing.

I imagine that my fellow commuters on the tubes and trains going out of the City will have had mixed views about the headlines.  Some might have thought that Ms Lokhova was in a very well paid business where you just have to toughen up and ignore this type of behaviour. Others might have thought that the Tribunal sent out a very welcome reminder that employers should not allow their staff to be bullied, and that if they do, there will be consequences.

I tend towards the latter view, and as a solicitor I felt quietly pleased to be reminded that our legal system can sometimes do a good job of protecting vulnerable people, no matter what their background or position.

…But then I got to page 12 of the same newspaper, and read the story of Alfie Perrin, a 16 year old boy who died in a workplace accident.  Alfie was just 6 weeks into a GNVQ Carpentry Apprenticeship, and was working on a building site for his employer, a reasonably large loft conversion company based in North London. 

Now of course building sites are dangerous places, especially for young and inexperienced people, and they should be properly supervised and looked after.  That was not the case for Alfie.  He was told to “bomb” some rubbish from the top of a building, i.e. throw bags from the roof into a skip at the foot of the building.  There was no adequate safety rail or scaffolding in place, and he was not given a harness.  He weighed just over 8 stone, and as he swung a particularly heavy bag, he lost his balance and fell to his death. 

The company has admitted two counts of breaching health and safety regulations, and is likely to receive a substantial fine.  So once again, to a certain extent, justice has been done.

But what of Alfie’s family?  His mother was quoted as saying “the past 2 years have been horrendous for all of us.  It has completely changed everything.  It has torn our family apart, there is not a moment of the day when I don’t think about him.  Everything is still as raw as the day it happened”.  An unimaginable grief. 

Bearing in mind the award that was given to Ms Lokhova, for her injured feelings and losses, what would be a fair measure of compensation for Alfie’s mother?

The answer is that it is probably impossible to quantify, and I imagine that no amount of money will ever ease her loss.  Unhappily though, apart from a statutory bereavement award of £12,980, which she will share with her husband, the civil compensation system is unlikely to even give her that opportunity.  In law, were she to bring a claim, she would be known as a “secondary victim”.  This means that unless she saw the accident, or its very immediate aftermath, she is unlikely to be entitled to any compensation whatsoever.

I don’t suppose that Alfie’s employers were bad people, and I am sure that it was also a tragedy for them.  The director of the company was acquitted of charges of manslaughter, and commented that he now wanted to be allowed to grieve in peace.  I can understand and believe that.

However, he was a businessman, with a clear duty towards his young employee.  To quote from Alfie’s father:-

“Safety measures definitely need to be looked into, especially for business who are taking on apprentices.  They have great incentives to take them on, so the Government and colleges need to make sure they are safe.  Alfie was let down … the company took him in and had to train him and had a responsibility to protect him, yet what he was made to do cost him his life.”

So, I had two stories to reflect on – one which made me proud of our legal system, and one of which left me saddened by its limits.

That isn’t to say that in every case of personal injury in the work place compensation will be unavailable. In fact, a few years ago I acted for a young man who received catastrophic injuries in a building site accident, and secured him damages of over £5m. Even in that case though, the compensation was purely for his physical injury.

The civil courts could give him nothing for his injured feelings, which were considerable, given that he was never going to be able to walk again and will be dependent upon carers for the rest of his life.

Before Parliament was dissolved George Howarth MP had filed an early day motion seeking reform, but with the General Election coming up it has no doubt slipped from the agenda.  Claimant lawyers have been asking for reform for a very long time, and to be frank I don’t hold out much hope. 

The Association of Personal Injury Lawyers is leading a campaign to reform compensation for victims of psychological injury.  Further details are available on their website.

At the very least, I hope that cases like that of Alfie Perrin will cause people to reflect that the so called “health and safety culture” is a good thing, rather than a hindrance.  After all, at the end of the day, be we bankers or builders, we all of us want to come home safe from work.

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On June 3rd 2015 Nicolas Mamier commented:

Great blog, thank you. Thought-provoking in many ways. Most businesses have forgotten WHY they are in business. A sobering reminder.
Nicolas Mamier, business owner/manager

On June 2nd 2015 Jacqui Perrin commented:

I stumbled across this by chance on another night that I could not sleep. Finally I have read something that actually takes our feelings into account and expresses our anger as a family. We want justice but everything seems stacked against us. Thank you for your opinion it does help to know that people who didn't even know Alfie and what a completely lovely young man he was, feel let down and frustrated by our justice system. Jacqui Perrin, Alfie's mum.

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