Ms S Macken v BNP Paris London Branch — 2024

This was a preliminary strike-out judgment following an earlier liability judgment and remedy judgment in which the claimant had received just over £2m, including £857,044.11 for future earnings. The tribunal rejected the claimant’s reading of paragraph 283 of the remedy judgment as creating an uncapped entitlement to annual RPI increases. It held that paragraph 283 was shorthand for the GIP scheme described earlier in the judgment, that the scheme remained subject to the 5% cap, and that the tribunal had already fixed future loss on the basis it considered appropriate. The tribunal also noted that, if actual future GIP earnings changed, the future loss calculation would simply be adjusted in the arithmetic of the original award rather than reopened as a new entitlement.

Applying Henderson v Henderson and Johnson v Gore Wood, the tribunal held that the RPI, salary review, holiday pay, equal pay, sex and disability discrimination, reasonable adjustments, unlawful deduction, and related whistleblowing and victimisation complaints were matters that were known at the remedy hearing and could have been raised there. It found that the claimant was represented by counsel at that hearing, had a 60-day window to seek reconsideration, and that her ill-health, prior COVID illness, and the later inflationary environment did not amount to a special circumstance justifying fresh proceedings. Those claims were therefore struck out as an abuse of process and/or for no reasonable prospect of success.

On the merits-based strike-out analysis, the tribunal held that direct sex and disability discrimination claims framed by comparison with Comparator 1 or active employees were misconceived, relying on Clifford v IBM UK Ltd and concluding that an employee in active work was not a materially similar comparator for a claimant receiving long-term GIP benefits. It also held that the indirect disability discrimination case had not been pleaded on the correct basis, because the relevant comparison was with non-disabled participants in the GIP scheme. The unlawful deduction claim was only partly viable in principle because GIP payments might be wages, but the claimant had no legal entitlement to the enhanced holiday items and bonus-based calculations she relied on. The separate October 2019 social-event allegation was also struck out: the tribunal found no continuing act, no basis for saying it was not reasonably practicable to present the whistleblowing claim in time, and no basis for extending time on a just and equitable basis for the victimisation claim. No fresh monetary remedy was awarded in this judgment.