EAT VICTIMISATION DISCRIMINATION – Remedy
The Claimant, an officer in the Metropolitan Police, reported dishonest conduct by a colleague. As a result of his complaint, the colleague and his superior officer had him suspended on unfounded disciplinary charges, which were collusively supported by a more senior officer. The charges were in due course dropped, but the Claimant was unable to return to his old department and had to move to a new role which he found less congenial and suffered lasting distress and disillusionment at the way he had been treated. At the liability hearing the Commissioner was held to have subjected the Claimant to an unlawful detriment by reason of his having made a protected disclosure, contrary to Part IVA of the Employment Rights Act 1996. At the remedy hearing the Tribunal awarded compensation in the sum of andpound;37,000 – comprising andpound;17,000 for injury to feelings and andpound;20,000 for aggravated damages. (There was no claim for injury to the Claimant’s health.)
On the Commissioner’s appeal against the amount of the award:
(1) Compensation for ‘whistleblower’ claims should be assessed on the same basis as awards in discrimination cases – Virgo Fidelis Senior School v Boyle  ICR 1210 followed
(2) An award of andpound;20,000 for aggravated damages was outside the recognised range for such awards, and it was also anomalous that an award of aggravated damages should exceed the award for injury to feelings. The Tribunal had made various particular errors in arriving at that figure, including focusing entirely on the seriousness of the Appellant’s conduct rather than on the impact on the Claimant and thus in practice introducing a punitive element: aggravated damages are compensatory only and represent an aspect of compensation for injury to feelings rather than a wholly separate head of damages – Alexander v Home Office  ICR 685, Prison Service v Johnson  ICR 275, McConnell v Police Authority for Northern Ireland  IRLR 625; ICTS (UK) Ltd. v Tchoula  IRLR 643, and HM Prison Service v Salmon  IRLR 425 referred to. Dictum of Slade J. in Ministry of Defence v Fletcher  IRLR 25 disapproved.
(3) More fundamentally, the overall figure of andpound;37,000 was likewise excessive. The right overall award was andpound;30,000, of which andpound;7,500 would (if necessary) be identified as aggravated damages.
Guidance given as to the nature of aggravated damages and the principles governing their award.
The EAT questioned whether the current practice of distinguishing between awards for injury to feelings and aggravated damages was desirable and suggested that the better course would be to include the aggravating features without separate quantification in the overall award, as is done in Scotland (see D. Watt (Shetland) Ltd. v Reid (EAT/424/01)) – McConnell (above) and dicta of Keene LJ in Reid v British Telecommunications plc  IRLR 27 and Smith LJ in Martins v Choudhary  1 WLR 617 referred to. However, it acknowledged that the practice was too well-established to be changed at this level.
Updated: 11 November 2021; Ref: scu.449416