Case law: Former employee with history of legal disputes victimised when applying for job with old employer

Employers faced with applications for jobs by former employees with whom they previously had legal disputes must ensure they have a good, documented reason for not interviewing or appointing them, or withdrawing the job, or risk victimisation claims.

An employee (a doctor) resigned after a nine-year period of employment marked by various legal disputes with his employer. He unsuccessfully applied for a job with the same employer the following year and made a tribunal claim which was resolved through mediation. Very shortly after, the employer advertised another job and the former employee was the only applicant.

The employer's HR department advised that he might bring a claim if not appointed. To reduce the chances of this they decided he should be interviewed by a panel that knew as little of his history as possible.

However, the job was then withdrawn and the interview did not go ahead. The employer said this was because a reorganisation removed the need for the job. However, the former employee claimed victimisation. There is victimisation if an employer subjects an employee to a detriment because he or she has complained about discrimination.

The Employment Appeal Tribunal (EAT) decided he had been victimised. It ruled that the real reason for withdrawing the job had been the employer's fear the employee would bring a claim if he was not appointed.

The employer's liability for victimisation was unaffected by the fact that his employment history with the employer, and his performance in previous interviews, meant he would have had only a ten per cent chance of getting the job - although that did reduce the amount of compensation it was prepare to award him.

However, the EAT awarded him compensation of £5000 for injury to feelings because, as a doctor, his employment options outside this employer were limited. The victimisation was therefore particularly detrimental.

Operative date

  • Now

Recommendation

  • Employers faced with applications for jobs by employees with whom they have had previous legal disputes must ensure they have a good, documented reason for not interviewing or appointing them, or for withdrawing the job.

Case ref: Das v Ayrshire & Arran Health Board [2014] UKEAT 0021_14_2811

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