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In Small v. Shrewsbury and Telford Hospitals NHS Trust the Court of Appeal has held that where a claimant's employment has been terminated due to a protected disclosure the tribunal can award compensation for long-term loss of earnings or "stigma damages" (as permitted by Chagger v. Abbey National), even if the Claimant did not raise the point him or herself.
The claimant was a project manager for the Trust and started working for the Trust, on a temporary assignment, 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, the claimant's employment was terminated by the Trust.
The ET agreed with the claimant that the reason for his dismissal was the fact that he had made a protected disclosure and therefore the termination amounted to an unlawful detriment under s47B of the Employment Rights Act 1996. The claimant, who was representing himself at this stage, sought 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 hindered by a lack of reference. The ET awarded compensation, 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. Despite not awarding any compensation for losses beyond this point, the ET did note that the termination had been "career-ending".
The claimant, at this stage with legal representation, appealed, arguing that he should get stigma damages, however the EAT dismissed the appeal, saying that such damages should not be considered by a tribunal as a matter of course.
The claimant appealed to the Court of Appeal, which found that in the "career-ending" circumstances of this case, stigma damages were to be considered by the ET as a matter of course, even if not raised by the claimant initially, and consequently should have been considered.
Whilst fact-specific, this case is a useful reminder of the protections afforded to whistleblowers as well as confirming that stigma damages can be considered and awarded by a tribunal even where these are not raised by the claimant, reaffirming how expensive whistleblowing claims can be.
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