The worker in question, a Mr Small, had worked at an NHS Trust for two months before being dismissed after he raised whistleblowing concerns about unsafe working practices. He brought a claim at the Employment Tribunal in which he argued that he had been unfairly dismissed for making the whistleblowing disclosure. The Employment Tribunal agreed and awarded him compensation for loss of earnings and injury to feelings as well as aggravated damages.

Mr Small appealed the decision regarding the size of his compensation to the EAT. He felt that the circumstances of his dismissal caused him a disadvantage in the labour market. He explained that following his dismissal by the Trust, he had struggled to find a new post. He had applied for more than 600 jobs but had only found temporary employment. He noted that part of the reason for his difficulty was the Trust’s failure to provide him with a satisfactory reference. This argument had been accepted by the Tribunal who had awarded Mr Small £5,000 in aggravated damages for this failing by the Trust.

At the EAT, Mr Small argued that the Tribunal should have included in his compensation for loss of earnings an amount to reflect the stigma of being a whistleblower. However, he had not previously made this argument when his claim was heard at the Tribunal. The EAT felt that, without the claimant arguing the point before the Tribunal, it could not be expected that the Tribunal would see the need to award damages for difficulties on the labour market arising as a result of a discriminatory act or dismissal because such situations are rare.

The EAT decided that in order to make an award for stigma loss the Tribunal would have had to have made a careful examination of all the evidence to see whether such an award was warranted. Although some examination of Mr Small’s present situation had been made by the Tribunal, further enquiry would have been necessary before a decision could have been made. The EAT felt that it could not make a decision on stigma loss itself.

Mr Small’s appeal accordingly failed.

CASE Small v The Shrewsbury and Telford Hospitals NHS Trust, Employment Appeal Tribunal, 7 August 2015

The claimant, Miss Baverstock, was a former employee of the Prison Service who had brought claims of disability discrimination and unfair dismissal relating to the ending of her employment. She was successful in the Employment Tribunal and was awarded compensation of £67,120.75. Her employer appealed both the Tribunal’s judgment and the size of the award against it.

The EAT found that the Employment Tribunal had decided the claims correctly. However, the Tribunal had erred in the basis on which it had calculated the amount of compensation due to Miss Baverstock, particularly in relation to past loss, future loss and pension loss.

When assessing past loss, the Employment Tribunal had speculated that had Miss Baverstock not been dismissed she would have been entitled to sick pay under her employer’s policy. It had further speculated that once the sick pay had been exhausted, she would have remained in unpaid employment.

The EAT decided that such speculation was unnecessary. The Tribunal should instead have given the employer the opportunity to present evidence first on its sick pay policy and then on whether it might have dismissed Miss Baverstock due to her long-term incapacity.

The EAT also found that the Tribunal had taken an incorrect approach when assessing future loss. The Tribunal had decided, without the benefit of any up-to-date medical evidence, that Miss Baverstock would be unable to work for six months.

The Tribunal had also found that Miss Baverstock would have continued in full employment for a further four years, despite her work history suggesting that such a finding was optimistic.  Past loss is the claimant’s losses between dismissal and the date of the remedy hearing. A claimant who has not secured alternative employment by the date of the remedies hearing or whose new salary and benefits package is less favourable, will have ongoing, future loss. The Employment Tribunal will identify the appropriate cut-off date for future loss.

Given the errors made in the Tribunal’s handling of past and future losses, the EAT decided that pension loss should also be reconsidered. The case was remitted to the same Employment Tribunal for compensation to be reassessed.

CASE The Secretary of State for Justice v Baverstock, Employment Appeal Tribunal, 10 June 2015