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 report confirms that many NHS staff are afraid to raise whistleblowing concerns because they fear it would have a negative impact on their career. Staff also lack faith in the whistleblowing system and feel it is futile to raise concerns as they would not be dealt with.

The report lists several action points built around five overarching themes of:

Key proposals:

The response to the Francis Report has been immediate. One of the report’s recommendations was that the scope of whistleblowing legislation be extended to include student nurses and midwives. The Government has announced new legislation coming into force from 6 April 2015 that will allow these staff to receive whistleblowing protection.