Ifere v North Cumbria University Teachings Hospitals Trust

Compensation for victimisation must be confined to loss flowing directly and naturally from the unlawful conduct actually found. The tribunal must ask what would have happened without that conduct. Loss need not be reasonably foreseeable, but a claimant cannot recover on the basis that other conduct was unlawful where the liability decision did not so find.

Accordingly, legal costs incurred in regulatory proceedings were not recoverable where clinical concerns, rather than the victimising misrepresentation, warranted referral and caused the interim conditions. A tribunal may reconsider an award where a party lacked a fair opportunity to address a material issue.

The claimant, a consultant paediatrician, succeeded before the Employment Tribunal in claims of constructive unfair dismissal and victimisation. The victimisation consisted of the respondent's medical director providing NCAS and the GMC with a partial and inaccurate account of the claimant's engagement with an investigation.

The tribunal initially awarded legal costs incurred in proceedings before the Medical Practitioners Tribunal Service Interim Orders Panel. On reconsideration, after considering fuller material, it revoked that part of the award. It held that clinical concerns alone warranted the referral and the interim conditions.

The claimant appealed, principally contending that the tribunal had taken too narrow a view of the unlawful conduct and lacked a basis to restore its earlier causation finding.

1. Appeal dismissed. The Employment Tribunal did not err in law when, on reconsideration, it revoked the award representing the claimant's legal costs in the regulatory proceedings.
2. Under sections 119 and 124(6) of the Equality Act 2010, compensation for victimisation is assessed on the tort measure. The relevant inquiry begins with the unlawful act found by the tribunal. The claimant must establish a causal connection between that act and the loss, by asking what would have occurred had the unlawful discrimination not happened. Loss must flow directly and naturally from the unlawful conduct, although reasonable foreseeability is not required.
3. The liability decision found victimisation only in the inaccurate portrayal of the claimant's cooperation with the investigation. It did not find that the clinical investigation, its report, the referral to NCAS or the GMC, or the clinical concerns were discriminatory or otherwise unlawful. The tribunal could not therefore award compensation on the premise that the clinical report itself was unlawful.
4. The tribunal had ample material, including transcripts and correspondence from the Interim Orders Panel proceedings, to find afresh that the allegation of failure to engage played no part in the decision to impose conditions. The clinical concerns themselves warranted referral and caused the conditions. The legal expenses would consequently have been incurred irrespective of the victimisation.
5. It was procedurally proper to order reconsideration after accepting that the respondent had not understood that the earlier remedy hearing would revisit the liability finding and had not had a fair opportunity to make submissions. The analogy with malicious-prosecution cases could not displace the statutory discrimination compensation principles.

• Employment Appeal Tribunal: appeal dismissed; the tribunal's reconsideration judgment revoking the regulatory legal-costs award was upheld.
• Employment Tribunal: judgment dated 3 October 2016 reconsidered the remedy award and revoked the sum awarded for legal costs incurred in Interim Orders Panel proceedings.
• Employment Tribunal: liability judgment dated 9 April 2015 upheld claims of constructive unfair dismissal and victimisation.