The claimant began his employment with the respondent in 2000 in the care of the elderly directorate as a locum staff grade doctor. In March 2006 he stated that he would not be able to see patients on behalf of locum clinics, effectively giving three weeks’ notice of his intention to change his working arrangements. A grievance process was concluded. 

In 2007 there was a difficulty about accommodation in that there were fewer rooms than there were doctors. The claimant was asked to move rooms and share with someone else and indicated in a letter that he would treat that as “racism/discrimination”. This matter was finally resolved following a meeting attended by the claimant’s trade union official in November 2007. 

Other issues, some pertaining to alleged racism, continued to be raised over a period of time. In April 2010 the claimant applied for a vacancy advertised by the respondent. He was qualified for the post and was the only applicant. The respondent shortlisted him but prior to interview decided to withdraw the vacancy. The HR department of the respondent thought that there was a high risk of the claimant complaining of discrimination if he was not offered the post, due to his history when previously employed by the respondent. The employment tribunal found that was the reason he was not interviewed.

However, the tribunal also found there were other reasons for the respondent not filling the post and that it may have decided not to fill it in any event. The tribunal found that the claimant had been subject to victimisation and awarded compensation in respect of loss of a chance. It found that the claimant had a 10% chance of being appointed and reduced compensation accordingly.

Neither the claimant nor the respondent were happy with the result. The EAT would not, however, interfere with the tribunal's award. Practitioners will find some interesting discussion and explanation of the tribunal's methodology and use of Ogden tables in relation to future loss. The EAT was satisfied that the tribunal had explained its reasoning and, although the award for injury to feelings was high, it was not so high that the EAT should review it. 
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