'Loss of a Chance' Compensation

24 February 2015

Can an employment tribunal reduce victimisation compensation because the Claimant was unlikely to be appointed to a role?

Yes, held the EAT in Das v Ayrshire & Arran Health Board.

Daniel Barnett’s employment law bulletin summarises:

During his employment the Claimant (a doctor) had made a number of complaints about treatment directed towards him and towards patients. His employment ended in 2009. In 2012, the Respondent advertised for a post and the Claimant was the only applicant. In part because of the Claimant’s history, the Respondent decided to withdraw the vacancy and made no appointment.

The tribunal held that the Respondent’s failure to interview the Claimant was because of the risk he would make a claim under the Equality Act 2010, which amounted to an act of victimisation.

However, it reduced compensation by 90%. He had performed badly in earlier interviews and had had a number of temporary roles: there were no guarantees he would get the job.

The EAT held that this decision was not perverse. There was sufficient material on which the employment tribunal could speculate about what would have happened had the Claimant been interviewed. A crucial finding was that the Respondent was prepared to appoint no one, rather than appoint someone they did not think suitable.