Practice and Procedure : Appellate Jurisdiction/Reasons/Burns-Barke – UNFAIR DISMISSAL – Compensation
The Claimant succeeded on a claim that he had lost his (agency) employment for making a public interest disclosure. At a subsequent Remedy Hearing he argued that if he had not suffered the discrimination he would have become a full-time employee of the Trust and would have remained in its employment until retirement, and on that basis claimed a continuing future loss of earnings. The Employment Tribunal (‘ET’) found that he would actually have been dismissed on 14 November 2013, a date prior to the ET Remedy Hearing, and made no further award for future loss. However, it awarded him compensation for injury to feelings, in the assessment of which it observed that he had effectively been shut out of the labour market because he had to reveal that he lost his job with the Trust for making a public interest disclosure. It was argued on appeal that the ET was bound in law to have considered whether to make an award for ‘stigma’ damages/loss of employability in future, as it was recognised in Abbey National v Chagger could be claimed in appropriate circumstances. Held that this was not such an exceptional case that an argument not advanced below could be heard for the first time on appeal. The ET had not heard it: indeed, it had heard an argument as to future loss which was premised on a very different basis.
Some further facts might need to be established. Although in principle such an award could be made, and did not need first to be formally pleaded (see Chang Wai Tong v Li Ping Sum; Thorn v Powergen plc) it was not so exceptional that it should be heard: the ET had made no error of law in addressing the submissions made to it in circumstances, as distinct from those relevant to redundancy or conduct dismissals, where it could not simply be expected to deal with the argument.
A claim for stigma loss/labour market disadvantage was comparatively unusual, and in finding the facts relevant to the claim for injury to feelings the ET had not been addressing the question of future loss of earnings.
Langstaff P J
[2015] UKEAT 0300 – 14 – 1905
Bailii
England and Wales
Employment
Updated: 03 January 2022; Ref: scu.551060