David Hoey asks whether a tribunal should award compensation in respect of a period not specifically claimed for by an unrepresented claimant?

In Small v Shrewsbury NHS Trust, one of the main issues to be determined was the extent to which a Tribunal should make an award for periods in respect of which no direct claim was made.

The claimant was engaged through an agency on a temporary assignment but understood that there was a prospect of full-time employment. That did not materialise and the Trust terminated his engagement. At the Employment Tribunal the claimant argued that he had made a protected disclosure and the ending of his assignment amounted to an unlawful detriment in terms of under section 47B of the Employment Rights Act 1996. The Employment Tribunal upheld this claim.

The claimant sought compensation to cover his loss of earnings up to his anticipated retirement date (which was in 2022). The claimant led evidence showing that since his assignment was terminated he had been unable to secure work in the same area. The Trust’s refusal to give him a reference adversely affected his prospects of securing an alternative role.

The Employment Tribunal awarded compensation of £54,126, which included a sum representing loss of earnings at £33,976. This was calculated on the basis that he would have been retained for a period of time but decided not to make an award for a lengthier period of time, even although the Tribunal noted that the Claimant’s career was dependent on the outcome of his last assignment and the absence of a reference by the Trust hindered him. The termination of his assignment was, in the Tribunal’s view, “career ending”.

The claimant appealed to the Employment Appeal Tribunal arguing that the Tribunal should have assessed his losses beyond the end point it had adopted as the authorities allow provision to be made for the ‘stigma’ an individual can suffer in the labour market. The appeal was not successful.

The claimant further appealed to the Court of Appeal and on this occasion was successful. The Court of Appeal was persuaded that the circumstances of this particular case required the Employment Tribunal to consider whether this case was a “stigma” claim. The Tribunal had noted that the claimant’s evidence had shown that he was suffering a loss which went well beyond the period relied upon by the Tribunal with the Tribunal referring to the career ending consequences of the assignment ending. The fact that the claimant had not specifically made reference to this particular claim did not mean that the Tribunal could ignore it and it ought to have considered it. The way in which the claimant had labelled his losses was not determinative. The fact that the claimant had not been legally represented at the original Hearing was a factor that the Court of Appeal took into account.

The Judgment ends with some pragmatic advice:

“I would wish to end by saying this. This is now a very long-running case, which began with a most regrettable act of victimisation by the Trust, of which the tribunal was rightly very critical. Considerable costs have no doubt already been incurred, but more will be incurred if the case has to be re-fought in the Employment Tribunal (and with the prospect of further appeals). The Appellant should appreciate that there are likely to be many uncertainties… I would strongly, therefore, encourage the parties to see if they cannot reach a sensible compromise. I would hope that they might be able to do so by direct discussion between their representatives…. If direct negotiation is not likely to be fruitful, the parties should certainly consider mediation. Litigation is both expensive and undermining to those involved, and it is worth real compromises by both parties to bring the litigation to an end sooner rather than later.”

This decision is a reminder of the importance of the potentially high value of Employment Tribunal claims and as to the significant costs of getting it wrong. Tribunals can on occasion be expected to be somewhat inquisitorial when it comes to unrepresented Claimants and care is always needed in valuing potential claims. Whistleblowing claims are notoriously complex and expert employment law advice is always recommended.