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Injury to Feelings + Aggravated Damages

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[Thanks to Rad Kohanzad of Atlantic Chambers for preparing this case summary]

The EAT (Underhill P) has handed down its decision in Metropolitan Police v Shaw where it held:

  • compensation in whistleblowing cases should be assessed on the same basis as awards in discrimination cases;
  • aggravated damages are compensatory and not punitive; and
  • aggravated damages represent an aspect of injury to feelings rather than a wholly separate head of damages.

Although it is common sense for a tribunal to look at the nature of the employer's conduct when assessing aggravated damages, the ultimate question is: what additional distress was caused to this particular employee by the aggravating feature(s) in question?

In order to reduce the risk of a tribunal awarding a punitive element within an aggravated damages award, the EAT suggested that tribunals use the following wording in their judgments:

"injury to feelings in the sum of £X, incorporating aggravated damages in the sum of £Y"

The EAT observed that, personal injury claims arising from whistleblowing detriments or discrimination should be brought in the same tribunal as claims for other losses because there is often an overlap between an award for injury to feelings and injury to mental health, and it is difficult for the second tribunal hearing the case to assess whether the claimant has already received compensation for what is in substance the same suffering.

Finally, the EAT observed that it had doubts about the basis for the award of aggravated damages in principle. However, it considered the practice to be too well entrenched to warrant abolition at EAT level.