Employment Law Update – Discrimination / Whistleblowing
Das v Ayrshire & Arran Health Board [UKEATS/0021/14]
Compensation for discrimination is based on the loss the claimant has suffered. This involves a degree of speculation, as the Tribunal must decide what would have happened had the discriminatory act not taken place.
The claimant was a doctor at the Ayrshire & Arran Health Board. He raised concerns about perceived misdiagnoses of patients by a consultant but an investigation found no evidence to support these concerns. He then gave three weeks' notice that he would no longer be able to see patients on behalf of locums, which he was told was in breach of his job plan. The claimant raised a grievance, which was not upheld. He did not appeal the outcome.
The claimant subsequently advised his employer that he considered a request to share rooms to be 'racism/discrimination'. He also brought a complaint about a racist comment made by a colleague, and unsuccessfully applied for promotion to associate specialist.
On 30 June 2009, the claimant resigned from his post. His resignation letter referred to bullying, harassment, discrimination, exploitation and victimisation.
In 2012, the Board advertised a post, for which the claimant was the only applicant. However, the Board considered there to be a mismatch between the claimant's experience and the experience required for the role. Further, the doctor in charge of the recruitment exercise received mixed feedback about the claimant. At the same time, the Board was considering a reorganisation and it was ultimately agreed that the vacancy would be withdrawn pending further discussion.
The claimant issued Tribunal proceedings for victimisation, on the grounds that the post had been withdrawn because the Board believed the claimant might bring proceedings if he was unsuccessful. The Board argued that the reason the post had been withdrawn was due to its reorganisation.
The Employment Appeal Tribunal ('EAT') agreed with the first instance Tribunal decision that, despite the reorganisation being underway, the reason that the post had between withdrawn was due to the belief that the claimant might bring proceedings. As a result, he had been victimised.
However, in awarding compensation, the Tribunal found that the claimant had only a 10% chance of being appointed to the role. He had passed through several hospitals after leaving the Board and would have to explain why he left his position with the Board in the first place. Whilst the Tribunal was unwilling to conclude that there was no chance of his appointment, it considered that very few interviewers would have been prepared to appoint him. The EAT stated that the Tribunal had been entitled to find that the claimant had lost only a 10% chance of being appointed for the job and assessed his damages accordingly.
Tips for Employers
This case is a useful indicator of the way in which the Tribunal might take into account 'loss of chance' in awarding damages.
Whistleblowing: Student Nurses and Student Midwives to be Included as Workers
The draft Protected Disclosures (Extension of Meaning of Worker) Order 2015 has been laid before Parliament. It will amend the definition of worker in section 43K of the Employment Rights Act 1996 to include both student nurses and student midwives. The amendments are due to come into force on 6 April 2015.