The Court of Appeal has decided in the case of Small v Shrewsbury and Telford Hospitals NHS Trust that the employment tribunal owes a certain responsibility to employees who claim future losses of earnings as a result of being dismissed for bringing a “whistleblowing” claim.
As many employees are now increasingly aware, “whistleblowing” (or protected disclosures, to use legal jargon) involve employees literally alerting either their employers or, in the alternative, public authorities or charities of certain concerns that they have involving their employers or the workplace in general. However, the particular matters that can qualify as whistleblowing are limited to disclosing information regarding an actual or (if the disclosure was made on or after 25th June 2013) suspected:-
• Criminal offence;
• Breach of legal obligations (i.e. in failing to make necessary reports to Companies House);
• Miscarriages of justice (for instance, if an employer has lied in order to win a court or tribunal case);
• Breach of health and safety laws;
• Incident that may cause damage to the environment (such as dumping toxic waste into rivers), and
• Deliberate attempts to conceal information related to any of the above.
Clearly, many of the topics listed above may overlap and, if an employer dismisses an employee for making such a disclosure by means of whistleblowing, this may then lead to a claim of automatic unfair dismissal, by which an employee will not need to have the customary 2 years of qualifying service with an employer before bringing a claim.
In the case of Small, which the Employment Appeal Tribunal had listed as being “not landmark”, the Court of Appeal looked at the financial impact that being targeted for making a whistleblowing disclosure may have on an employee.
The employee had applied to over 600 companies for employment after being dismissed for whistleblowing against the relevant NHS Trust that had employed him. Each time, he had been required to disclose that he had left his last employment because he had made such a disclosure, leading prospective employers to effectively stigmatise him and dismiss his various job applications.
On appeal before the Court of Appeal, it was decided that, given that the Employment Appeal Tribunal had recognised that the effect of the employee’s dismissal for whistleblowing was “career-ending”, the employment tribunal should have taken the employee’s future loss of earnings into account when awarding damages considering the stigma that had been attached to him. This was so even though the employee had failed to claim these future losses of earnings in his original claim.
This case is a heartening reminder that the employment tribunal should aim to assist an employee in bringing his or her claim by pre-empting the award of damages that would usually be claimed in a specific case.
It is also serves as a reminder to employers and prospective employers not to stigmatise employees who have blown the whistle during the course of their employment.
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