The Court of Appeal in Small v Shrewsbury and Telford Hospitals NHS Trust [2017] EWCA Civ 882 recently considered the question of whether a Claimant ought to receive damages for stigma and loss of future prospects where the evidence suggests so but the issue has not been raised by the parties.
In this instance, the Claimant successfully represented himself in Employment Tribunal proceedings against his former employer, an NHS Trust, in respect of “whistleblowing”. In particular, the Claimant alleged that he had been unlawfully subjected to a detriment after his employment had terminated.
As established by the Court of Appeal in Chagger v Abbey National plc [2010] ICR 397 a Claimant can, in certain circumstances, recover damages for the disadvantage in the labour market arising from having brought a “whistleblowing” claim and having been dismissed because of whistleblowing.
The Claimant appealed against the judgement of the Employment Tribunal on the basis that, in his submission, it was incumbent on the Tribunal to consider awarding damages applying Chagger, even if this was not expressly pleaded.
Whilst the Claimant’s initial appeal was dismissed, albeit with some regret, by the EAT, the Court of Appeal allowed his further appeal and emphasised the importance of a Tribunal taking for itself points that arise “as a matter of course” irrespective of whether they have been taken by the parties. The fact that the Claimant initially brought his claim as a litigant in person was also potentially of significance in this case.
Small v Shrewsbury and Telford Hospitals NHS Trust serve to emphasise the importance of obtaining high-quality representation at the outset of any potentially contentious situation.