Should a tribunal consider a Claimant's long-term future loss of earnings if they did not expressly assert it?

Should a tribunal consider a Claimants long-term future loss of earnings if they did not expressly assert it?

In the case of Small v Shrewsbury and Telford Hospitals NHS Trust, the Court of Appeal found that a Claimant was entitled to long-term loss of earnings even though they did not advance such a claim. This was in the context of a whistleblowing claim where dismissal was recognised to be “career-ending” and the Claimant was a litigant in person.

Facts

Mr Small began working for the Trust in 2012 aged 56. He was employed as a project manager on a temporary basis but understood that a full-time offer of employment would shortly follow. Mr Small was dismissed after a couple of months of employment. An Employment Tribunal found that he was dismissed because he had made a protected disclosure and therefore that his dismissal was automatically unfair.

At the remedy hearing Mr Small argued that he should be awarded loss of earnings up to his anticipated retirement in 2022 on the basis that he anticipated a permanent appointment. Mr Small was not legally represented at the Hearing. Mr Small also gave evidence that he had been unable to obtain work in his field due to his dismissal and the fact that the Trust has not given him a reference.

The Tribunal awarded Mr Small a sum for loss of earnings calculated up until November 2013 when his temporary contract would have terminated. The Tribunal also awarded an amount for injury to feelings. In delivering their reasoning for this, the Tribunal recognised that in Mr Small’s line of work “he is only as good as his last reference” and his dismissal appeared to be “career ending”.

Mr Small consequently appealed against the amount awarded to the Employment Appeal’s Tribunal (EAT) at which he was legally represented. Mr Small argued that his loss of earnings should have extended beyond November 2013 based on the decision in Chagger v Abbey National Plc. This case established the principle that a claimant can claim for loss as a result of a failure to obtain alternative employment following the period of which the claimant would otherwise have remained employed, including a claim for the ‘stigma’ they have consequently received in the labour market. The EAT dismissed Mr Small’s appeal on the basis that a ‘Chagger’ claim was not sufficiently obvious and therefore the Tribunal were not obliged to consider it “as a matter of course”.

Mr Small appealed again to the Court of Appeal.

Decision

The Court of Appeal found that, in these particular circumstances, the Tribunal should have considered a ‘Chagger’ claim as a matter of course and despite Mr Small not presenting this claim himself. This decision was based on the fact that Mr Small was a litigant in person at first instance, he had given evidence at the remedy hearing to show that he was suffering long-term losses due to the dismissal and the subsequent proceedings, and the Tribunal had itself recognised that the dismissal was “career ending” for Mr Small.  

Comment

This case illustrates that whistleblowing cases can attract significant and uncapped compensation. Claimants can advance ‘stigma’ arguments even when they have been unspecific at an earlier stage. The Court made it clear however that a ‘Chagger’ claim will not be considered as a matter of course and that this decision was specific to the circumstances of the case. The fact that Mr Small was unrepresented at the remedy hearing, was clearly a major determining factor.

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