The Employment Appeal Tribunal has held that a claim for stigma damages does not need to be formally pleaded to be considered. In exceptional circumstances, an Employment Tribunal may consider such an award even if there is no reference in a claim form. However, it is not a matter of course for the Tribunal and will turn on its own facts.
Stigma damages are damages which seek to compensate a claimant for difficulties in securing alternative employment; typically where an employee has made a protected disclosure which may be well known. They can also be awarded following a discriminatory dismissal.
In the case of Small v Shrewsbury and Telford Hospitals NHS Trust, the claimant worked via an agency as a Project Worker for the NHS Trust. Following a protected disclosure regarding the risks from asbestos, the Employment Tribunal held that he had been dismissed due to the making of a protected disclosure. He was awarded loss of earnings and an award for injury to feelings, taking into account the fact that he had been shut out of the labour market due to knowledge of his making a protected disclosure. He appealed arguing that the Employment Tribunal should have considered an award for stigma damages.
The Employment Appeal Tribunal dismissed his appeal on the grounds that no claim for stigma damages had been pleaded. This was not an exceptional case where the Tribunal should consider a claim for stigma damages of its own volition and it was not a matter that the Tribunal could address with any degree of certainty without further information.
It is important when drafting a claim to consider all heads of loss and ensure that they are pleaded. In the absence a claimant may lose out on damages to which they may be properly entitled to. If you are not legally represented, it may be worth paying for a solicitor to review the claim before submitting it. This initial cost could result in a substantially higher award in the long run.