Das v Ayrshire & Arran Health Board (Equality Act 2010 section 27B. Victimisation)

Where unlawful victimisation deprives an applicant of the opportunity to be considered for employment, compensation may properly reflect the lost chance of appointment. The tribunal may assess that chance by drawing reasonable inferences about the questions a properly constituted interview panel would ask and the answers likely to be given, even though no panel was ultimately convened.

A claimant who lost only a slender chance of appointment is not in the same position as an employee dismissed from an existing post. That distinction may affect both pecuniary compensation and an award for injury to feelings. An appellate court will not interfere merely because it might have assessed the chance, future-loss multiplier or injury-to-feelings award differently; it must identify an error of law or a perverse assessment.

The Employment Tribunal upheld Dr Das's claim of victimisation under the Equality Act 2010. The Health Board had withdrawn a specialty doctor vacancy before interview. Dr Das was qualified and the only applicant. The Tribunal found that concern that he might bring further proceedings was a substantial influence on the decision to depart from the ordinary recruitment process.

The Tribunal assessed his loss as a 10% chance of appointment and reduced compensation by 90%. It also awarded travelling-cost losses, future loss using a multiplier of five, and £5,000 for injury to feelings. Dr Das appealed the reduction for lost chance. The Board cross-appealed the compensation assessment. Neither party challenged the finding of victimisation.

1. Appeal and cross-appeal refused. The Tribunal made no error of law in assessing Dr Das's chance of appointment at 10% and reducing compensation accordingly.

2. The Tribunal was entitled to infer that any interview panel would investigate the claimant's recent employment history from his CV. A panel selected to have little or no prior knowledge of his history could nevertheless fairly ask relevant questions about it. The Tribunal could also find that he would answer truthfully and that his explanation for leaving the Board, together with the risk of a poor answer concerning doctors in difficulty, made appointment very unlikely.

3. The assessment was not impermissible speculation. No interview panel had been constituted, but the Tribunal had sufficient factual material to assess the lost chance. Its conclusion that the claimant had lost a slender, rather than no, chance of appointment was open to it.

4. The Tribunal was entitled to select a multiplier of five for future travelling-cost loss. Its assessment involved matters of evidential weight, including the claimant's prospective employment choices and family circumstances. It was not perverse.

5. O'Donoghue v Redcar and Cleveland Borough Council was distinguishable. The claimant lost only a slim chance of obtaining a job, not an existing job through a victimising dismissal. The Tribunal could therefore take account of the limited chance of appointment when valuing injury to feelings. The £5,000 award was high, but was not so excessive as to warrant appellate intervention.

• Employment Appeal Tribunal: Appeal and cross-appeal refused in [2014] UKEAT 0021_14_2811.
• Employment Tribunal: The claimant's complaint under section 47B of the Employment Rights Act 1996 was dismissed. His victimisation complaint under the Equality Act 2010 succeeded. Compensation, including interest, totalled £8,600.08 after a 90% reduction.