Employment Law Cases
Stigma claim for 'career-ending' termination following whistleblowing
Small v Shrewsbury and Telford Hospitals NHS Trust
Where an employee’s employment has been terminated due to a protected disclosure a tribunal can award compensation for long-term loss of earnings or ‘stigma damages’ - even if the employee didn’t actually advance such a claim.
Mr Small was a project manager for Shrewsbury and Telford Hospitals NHS Trust and started working for them, on a temporary assignment via an agency, when he was 56 years old. It was understood that full-time employment was likely to follow the temporary assignment. However, within two months of the start of the temporary assignment, his employment was terminated.
Mr Small successfully argued before a tribunal that the reason he’d been dismissed was because of a protected disclosure and that his termination was an unlawful detriment. When it came to the remedies hearing, Mr Small, who represented himself, asked for compensation for loss of earnings up until the date of his retirement (among other things) on the basis that permanent employment was likely to have followed the temporary assignment and that his search for new employment had been hampered by a lack of reference. The tribunal awarded compensation of £54,126, including £33,976 for loss of earnings, on the basis that he would have been employed for the length of the temporary assignment but no longer. The tribunal acknowledged that Mr Small’s termination had been ‘career-ending’. Mr Small appealed, arguing that he should have been awarded loss of earnings beyond the date of the temporary assignment and this should include compensation for the stigma attaching to his unlawful dismissal. This time he had the benefit of counsel representing him. The EAT however dismissed his appeal, saying that such damages should not be considered by a tribunal as a matter of course. Undeterred, Mr Small moved on to the Court of Appeal.
Court of Appeal decision
The Court of Appeal allowed Mr Small’s appeal. It held that the tribunal ought to have considered whether Mr Small had a claim in respect of his loss after the date when the temporary assignment ended, which would, in principle, include a stigma claim. Mr Small’s evidence to the tribunal made clear that he was suffering a loss extending into the indefinite, and probably long-term, future, and that the tribunal had itself recognised the ‘career-ending’ consequences of the termination for him. Although such a claim will not always be a ‘matter of course’, it was so in the particular circumstances of the present case.
Link to judgment: http://www.bailii.org/ew/cases/EWCA/Civ/2017/882.html
Whistleblowing cases are much in the news, see for example, Chesterton Global Ltd v Nurmohamed. They can, and do, attract significant and uncapped compensation. While this decision is fact-specific (and the fact that Mr Small was unrepresented at the remedy hearing was clearly a significant factor), it’s a useful reminder of (a) the extent of protections afforded to whistleblowers and (b) how potentially expensive for employers they can be.