When the evidence in a 'whistleblowing' case suggests that a Claimant should receive damages for stigma and loss of future prospects, should an employment tribunal determine that even if it not raised by the parties?
Yes, held the Court of Appeal in Small v Shrewsbury and Telford Hospitals NHS Trust. The Claimant was a project manager for the Trust. He successfully represented himself at an employment tribunal claiming a detriment related to a protected disclosure after his contract was terminated. He did not make an express claim for 'stigma' damages under Chagger v Abbey National, i.e. a Claimant can recover damages for the disadvantage in the labour market from bringing a 'whistleblowing' claim and having been dismissed because of whistleblowing (as with discrimination claims). The Claimant appealed on the basis that it had been incumbent on the tribunal have considered awarding damages applying Chagger, even if such a claim was not expressly made out.
The Court agreed and emphasised the importance of an tribunal taking for itself points that arise "as a matter of course", irrespective of whether they have been taken by the parties. On the face of the Claimant's witness statement, there was very explicit evidence pointing to long-term losses that could come under Chagger.
Thanks to Ed McFarlane of Deminos HR for preparing this case summary