A WHISTLE BLOWING WINDFALL? THE DUTY TO CONSIDER STIGMA DAMAGES– SMALL V THE SHREWBURY AND TELFORD HOSPITALS NHS TRUST

The Court of Appeal held today in the case of Small v The Shrewsbury and Telford Hospitals NHS Trust[1] that an employment tribunal should consider of its own motion awarding stigma damages to a successful employee in a whistleblowing dismissal case even where it is not raised on behalf of the employee, where the evidence warranted it.

S, a litigant in person, was an agency worker who worked as a project manager in the estate management department of the Respondent trust. S claimed that his contract was terminated when he tried unsuccessfully to get the Respondent to notify previous occupiers of a group of properties owned by it that they might have been exposed to asbestos.  The employment tribunal found that S’s termination amounted to an unlawful detriment contrary to section 47B of ERA 1996.

At a remedy hearing, various losses were claimed, but S did not make a claim for stigma damages pursuant to the case of Chagger v Abbey National [2010] ICR 397. In that case, the EAT held that in the case of a discriminatory dismissal, the period which the employee would have worked for the respondent employer but for the dismissal does not represent an automatic cut-off in assessing compensation and a claimant can recover for the consequence of any disadvantage he suffers on the labour market by reason not only having been dismissed by his previous employer but also because of having brought proceedings against the employer (“the stigma damages”).

At the remedy hearing S relied upon a witness statement in which he stated that he had applied for more than 576 interviews and only secured 6 interviews, and had experienced difficulties in explaining the reason for his dismissal and his claim against the Respondent trust. The tribunal awarded S damages, including aggravated damages, but no future loss of earnings beyond November 2013, the date upon which it found that S would have been retained at the Respondent trust until.

The Court of Appeal held that despite the fact that S did not expressly advance a “Chagger” claim, this was not surprising as he had been a litigant in person. On the facts of the case, the tribunal had had before it S’s witness statement which gave explicit evidence that he was suffering a loss extending into the indefinite, and probably long-term, future partly due to the stigma associated with his claim. The tribunal had found that the consequences of the dismissal appeared to be “career-ending” and therefore the tribunal should have raised for itself the issue of stigma damages for submissions to be made by the parties.

 

[1] [2017] EWCA Civ 882