Whistle-blowers can receive stigma damages for loss of career, even if they do not specifically request this in their ET claim
13 July 2017 #Atypical & Flexible Working
Unlike ordinary unfair dismissal claims, there is no cap on damages for loss of earnings in a whistle-blowing claim.
In Small v Shrewsbury and Telford Hospitals NHS Trust, Mr Small, a Project Manager, blew the whistle on the asbestos risk in a property owned by the Trust. He was then dismissed and not given a reference, which in the field he worked was characterised as “virtually essential.”
He represented himself in a successful ET claim for detriment because of whistle-blowing. He presented evidence that he had been unable to obtain work despite applying for over 576 vacancies. He did not specifically request stigma damages for disadvantage in the labour market due to whistleblowing.
The ET awarded Mr Small damages for 16 months’ loss of earnings. His appeal to the Employment Appeal Tribunal for damages for loss of career was unsuccessful.
He appealed again and The Court of Appeal decided that:
- based on the evidence Mr Small had presented, he probably was facing an extended period of loss due to stigma surrounding his claim; and
- the ET should have considered this, even though it was not explicitly raised in his claim.
The case was sent back to the ET to consider such damages.
This case is a reminder that employers must take extreme care in dealing with whistle-blowers, as if they are dealt with improperly there is a possibility they could be liable for substantial uncapped damages for career long loss.
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