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A candidate who was turned down for a job with his former employer was subject to victimisation, confirmed the EAT in Das v Ayrshire & Arran Health Board, although his entitlement to compensation was limited to 10% because he only had a slim chance of being appointed.
Dr Das was employed by the Ayrshire & Arran Health Board (Health Board) in 2000 as a specialist doctor. During his employment, Dr Das disclosed his concerns over a colleague's alleged misdiagnoses of patients. A full investigation was instigated, which found no evidence to support the allegations. Dr Das also raised separate allegations of race discrimination at different times during his employment.
In 2009 Dr Das resigned from the Health Board to undertake GP training, although he decided not to pursue this line of practice. He then worked in a series of different hospitals until, in 2010, he applied for a speciality doctor post with the Health Board and was invited for interview. In the eyes of the interview panel he performed poorly and was not appointed. Dr Das issued a victimisation claim that was subject to a successful mediation.
In 2012 Dr Das again applied for a vacant post with the Health Board. Although he was the only applicant, he was not invited to interview. The Health Board subsequently decided to withdraw the post on the basis of a planned restructure. The restructure did in fact take place.
Dr Das issued tribunal proceedings on the basis that the withdrawal of the post amounted to victimisation, the protected acts being his early allegations of race discrimination.
The Employment Tribunal (ET) held that the Health Board's decision to withdraw the post was an act of victimisation because, on the facts, it concluded that the post had been withdrawn as a result of the Health Board's belief that Dr Das may bring proceedings. However, the ET went on to find that there was only a slender chance of Dr Das being appointed. Despite the ET's view that very few interviewers would have appointed Dr Das, it concluded that he had a 10% chance of getting the job.
Both parties appealed to the Employment Appeal Tribunal who upheld the ET's decision.
The case is a useful reminder of the risk of claims of victimisation from prospective job candidates during the recruitment process. It is perhaps surprising that the ET felt Dr Das had a 10% chance to obtaining employment, despite finding that his chances of being appointed were slim.