By Udara Ranasinghe
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Published 25 February 2021
The Facts
Mr Shoukrey (MS) is a consultant who held practising privileges with BMI Healthcare Ltd (BMI) (a form of self-employed contract under which he could carry our private medical practice at BMI’s hospital). MS was suspended by BMI for investigation of concerns relating to his clinical performance and latterly due to ongoing investigations of his practice with the NHS. In September 2016, MS resigned his practising privileges and brought a claim against BMI on the basis that he had been subjected to unlawful detriments on the basis of having made protected disclosures to BMI. At the liability hearing in October 2016, the Employment Tribunal found that MS had made protected disclosures to BMI and he was successful in some of his whistleblowing detriment claims.
The remedy hearing took place in May 2019 and in the intervening period MS’ NHS career had gone, as the ET noted, “from strength to strength” and “the outlook was very bright”. However, MS no longer had an established private practice as a result of his resignation of practising privileges with BMI. MS was awarded career long future losses by the Tribunal with total compensation of £920,202 (most of which was future loss). The Tribunal determined that he would, but for the unlawful acts of BMI, have taken over the lucrative private practice of another consultant who was approaching retirement age. On that basis, MS would have grown and maintained a lucrative private practice until his own retirement. Significantly, the Tribunal found that it was unlikely MS would have moved in order to mitigate his losses by securing private practice in another part of the country.
BMI appealed the Tribunal’s remedy findings on a number of grounds including that :
- The Tribunal had not considered causation properly (in particular whether resignation here was an intervening act separate from the whistleblowing detriments that had been upheld and none of which arguably related to the resignation);
- taken an excessively rosy view of MS’ future prospects that but for BMI’s unlawful action, it was certain that he would have taken over the other consultant’s lucrative private practice upon their retirement; and
- taken an excessively pessimistic view of the ability of MS to mitigate his loss, particularly by concluding that it was not realistic for MS to relocate to build his private practice elsewhere.
DAC Beachcroft acted for BMI in the appeal and BMI were successful on all appeal grounds.
What does this mean for employers?
The Employment Appeal Tribunal (EAT) gave specific consideration to how losses should be assessed in Tribunal claims and confirmed that the correct approach is that the Tribunal should first assess whether an employee’s loss would not have occurred “but for” the unlawful acts of the employer, applying normal principles of loss applicable in the civil courts. Importantly the EAT confirmed that as part of that assessment, a Tribunal must consider the possibility that an intervening event could disrupt the chain of causation or that the unlawful act was too remote from the loss to be. Following consideration of causation on the common law basis, it was then for the Tribunal to consider whether the award reached was “just and equitable” as required under s49(2) Employment Rights Act 1996. There is a two stage approach which allows employers to argue loss doesn’t arise and then potentially apply similar or other factors to reduce any compensation on a just and equitable basis.
The EAT also noted that an Employment Tribunal must take a balanced view between the advantageous and disadvantageous possibilities of an employee’s possible future loss, particularly where that employee is healthy and performing well at the time of the assessment. The EAT warned that the need to assess the balanced possibilities and to avoid penal awards meant it will be rare for loss lasting a whole career to be awarded where a Claimant is in good health and that before making such an award, the Employment Tribunal should consider the matter with great care. The EAT also reminded Tribunals of the need to take a balanced approach, consider not only the chance that something may happen (eg MS taking over successfully the private practice of another) but the chances that might not occur. For employers, this is a welcome decision and may act as a countervailing influence against the increasing number of cases we see where claimants seek career long losses.
BMI Healthcare Ltd v Mr M Shoukrey_UKEAT_0336_19_DA
