CIPD:”Employers need to document decisions carefully to avoid claims. A recent case, Das v Ayrshire and Arran Health Board, shows the problems an employer may face where a former employee, with whom there have been issues in the past, applies for a new job.
Victimisation occurs where an employee is subjected to detrimental treatment by an employer because of carrying out a ‘protected act’ (or because the employer believes the employee has carried out, or may carry out a protected act). One of the protected acts is bringing discrimination proceedings under the Equality Act 2010.
Das was employed as a specialist doctor by a health board between 2000 and 2009. It was a rocky employment relationship. Among other things, Das made a protected disclosure (blew the whistle), raised a race discrimination grievance and was unsuccessful in his application for promotion. In 2009, he resigned. He decided to train as a GP but withdrew from this training shortly after starting. He then worked for a number of hospitals in the region over a three year period.
In April 2010 he applied for the role of specialist doctor with the board. The recruitment panel did not shortlist him initially but a member of the HR team recognised his name and discussed the situation with her superior. They decided to invite him to an interview. He was unsuccessful and brought a tribunal claim which was settled by judicial mediation.
In the following month, the employer advertised a clinical teaching and research post. Das was the sole applicant. The HR department confirmed that the outcome of the judicial mediation in 2010 did not prevent Das from applying. The department thought he should be shortlisted but were concerned that, if he was not appointed, he would bring a claim. In order to allay these concerns, the employer departed from its normal procedure and decided to convene an interview panel with as little previous knowledge of Das as possible.
At the same time, the employer was considering a re-organisation. Due to this, the employer decided to withdraw the vacancy. The interview did not go ahead and Das issued proceedings for victimisation.
The employment tribunal held that he had been victimised. The tribunal did not accept the employer’s argument that the post was withdrawn due to the re-organisation. Instead, it found that the reason the vacancy had been withdrawn was due to the employer’s belief that Das would bring proceedings.
The tribunal was unwilling to conclude that there was no chance Das would have been appointed even though it thought that very few interviewers would have been prepared to appoint him, due to his employment history with the organisation, and his performance and answers in previous interviews. However, the tribunal did find that Das only had a 10 per cent chance of being appointed and reduced the compensation it awarded him accordingly.
The tribunal also made an award for injury to feelings of £5,000. As a doctor, Das was restricted to the health board as a potential employer. It was, therefore, particularly damaging for him to be victimised by the organisation.
Das appealed against the calculation of his compensation and the employer cross-appealed against the amount of the injury to feelings award.
The Employment Appeal tribunal upheld the tribunal’s decision. The EAT found that the tribunal was entitled to find that the interview panel was very unlikely to have appointed Das given the questions they would have been bound to ask him. With regard to the award for injury to feelings, while this was on the high side, it was not so excessive as to require reconsideration.
Where an employer is faced with this type of situation, it is essential that it has a good, sustainable reason for not inviting individuals to an interview or for not offering them the position. Additionally, an employer must document that decision appropriately and be clear in the reasoning behind it. This is particularly important where an organisation thinks the rejection may result in a dispute. Serious thought at an early stage can often avoid significant liability at a later stage.