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The BBC has agreed to compensate a journalist who is leaving its staff after complaining to the Equality Commission that she has been victimised. Dot Kirby, who has been the corporation's Northern Ireland health correspondent since 1994, has had multiple sclerosis for 20 years. She alleged direct disability discrimination, disability-related discrimination, victimisation, failure to make reasonable adjustments, sex discrimination and age discrimination. Now, she is expected to receive a sum equivalent to a year's salary.
However, the BBC continues to deny every one of Kirby's allegations. Her compensation has not been ordered by a tribunal. The corporation has agreed to pay it in a private settlement, without admitting liability.
The commission is reported to be happy to see the matter resolved to the satisfaction of both parties. It may be happy, but should the rest of us be? If the BBC believes it owes Kirby nothing, why is it showering her with public money? Didn't it have a duty to licence-payers to defend its claim that it had done nothing wrong, by fighting its case in public?
Discrimination disputes seem to be resolved in this sort of way all too often. The most spectacular recent case has been that of Assistant Commissioner Tarique Ghaffur of the Metropolitan police. Last year, Ghaffur claimed that because of his race he was sidelined, discriminated against and humiliated in his role as boss of security planning for the 2012 Olympics.
The then commissioner, Sir Ian Blair, denied Ghaffur's allegations, but none the less decided to pay him a sum that was supposed to reflect not just "the hurt which he has felt" but also some of his legal costs. In return, Ghaffur withdrew his allegations. The cost of the deal was kept secret.
Such arrangements hold obvious attractions for employers. A gagging clause is usually part of the deal. So, they can ensure that their behaviour is shielded from public scrutiny, and thereby avoid the consequences that might flow from any criticism of it. Of course, they have to persuade complainants to play ball, but complainants also stand to gain from a cosy stitch-up. They too are protected from public scrutiny of their actions, and from the possibility of a ruling against them that might cast doubt upon their honesty. They may also reap another benefit.
Generally, litigants who settle out of court accept lower compensation than they might have won in court, in return for certainty of outcome. In discrimination cases, however, there is reason to suppose that complainants who make a private deal often get much bigger settlements than they would have done if they had prevailed at a tribunal.
It is widely assumed that tribunals habitually award large sums. However, this is not so. The Equal Opportunities Review analysed the compensation awards made in discrimination cases in 2006. The average paid in cases of sex discrimination was just £7,294; in cases of race discrimination it was £5,302; and in cases of disability discrimination it was £9,480.
Awards for injury to feelings (all that the Metropolitan police acknowledge that Ghaffur suffered) are governed by the "Vento guidelines" established in the case of Chief Constable of West Yorkshire Police v Vento (No 2). These set out bands which relate the size of awards deemed appropriate to the scale of the hurt suffered. The upper limit of the top band is £25,000, which is payable only in the most extreme cases of harassment. The average award actually paid in 2006 was around £5,000.
Higher figures are paid in out-of-court settlements for one simple reason. Such payments are inflated by what is effectively hush money. The extra cost matters little to the parties, as it is the rest of us who have to pick up the tab.
If private organisations wish to buy secrecy in this way, that is perhaps their business. However, haven't we the right to demand transparency and accountability from public sector bosses?
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