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Consultant surgeon brought claims against Dorset County Hospital NHS Foundation Trust

Makbool Javaid, Partner - Simons Muirhead & Burton
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In the case of BMI Healthcare Ltd v Shoukrey the Claimant worked for the Respondent as a consultant in private practice. He alleged that he suffered detriments, having made various protected disclosures, and he succeeded before the ET in respect of some of the claimed detriments.

At the remedy hearing, the ET ordered the Respondent to pay the Claimant around £920,000, including more than £880,000 for loss of earnings from private practice (mostly for future loss). The Respondent appealed on the grounds that the ET (1) had failed to consider the possibility that the Claimant resigned practising privileges for reasons other than the detriments, (2) had erred in law in failing to apply its own factual findings on discount, (3) had erred in law in determining what the Claimant would have earned in future and for how long he would have done so, and (4) took an excessively pessimistic view of the Claimant’s ability to mitigate his loss.

The EAT held that the ET failed in the basic task of determining the question before it in respect of the causation of the Claimant’s loss; the EAT also upheld the Respondent’s appeal on grounds (2) and (4) above. Accordingly, the case would be remitted to a fresh ET for consideration of the relevant matters.

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