The Tribunal's Approach to Damages in Whistleblowing Claims

How Much Compensation Can Be Awarded in Whistleblowing Claims?

There is no upper limit on the amount of compensation that can be awarded in unfair dismissal or detriment claims under whistleblowing legislation. Compensation for unfair dismissal however can only cover financial loss and cannot include compensation for injury to feelings. However, compensation for detriment can include non-financial elements such as injury to feelings.

What Were the Tribunal's Findings?

In the case of Jhuti v Royal Mail Group, which was a remedies hearing following a Supreme Court judgment in 2019, Royal Mail was found to have subjected Ms Jhuti to detriments. This is as a result of her making protected disclosures, and was also found to have automatically unfairly dismissed her. Following that Supreme Court judgment, a remedies hearing has now taken place at the Tribunal. The Tribunal's approach to each element of compensation awarded to Ms Jhuti, is summarised below.

• Loss of earnings - The Tribunal took into account medical evidence that Ms Jhuti would never work again due to the effects of her ill health caused by her treatment by Royal Mail, plus the stigma of having been unemployed for six years since her dismissal. The Tribunal assumed 2% annual pay increases and applied an appropriate multiplier from the Ogden tables to predict Ms Jhuti's future loss. The Tribunal did not affix a figure to this element of compensation and instead left it to the parties' representatives to agree the exact amount.
• Personal injury (£55,000): The Tribunal took into account Ms Jhuti's pre-existing vulnerability to depressive disorder, but also the evidence that this had not previously affected her ability to work. Her present illness had arisen directly as a result of her treatment by Royal Mail.
• Injury to feelings (£40,000): The upper Vento band was £18,000 - £30,000 at the time Ms Jhuti brought her claim. The Tribunal applied an RPI increase to the band in order to produce an upper band of £27,000 - £45,000.
• Aggravated damages (£12,500): The Tribunal found that Royal Mail's conduct during the remedies hearing amounted to conduct that was malicious, high handed and oppressive. Royal Mail had not accepted the factual findings of the original Tribunal and had cross-examined Ms Jhuti, seeking to show she was a poor performer and attempting to undermine previous medical evidence. Ms Jhuti was forced to recollect the bullying she had suffered, which was said to have caused a 'visceral' reaction which was 'painful to witness.' Royal Mail had been entitled to test the evidence, but should have done so by cross-examining the medical evidence rather than causing further pain and suffering to Ms Jhuti.
• Failure to follow the ACAS Code (0.5% uplift): Royal Mail had been found to have deliberately failed to provide an outcome to Ms Jhuti's grievance in a timely manner; this was a breach of the ACAS Code. Normally, that breach would warrant an uplift of 10% to the compensation awarded to Ms Jhuti. However, this would have stretched to hundreds of thousands of pounds, which the Tribunal considered would be disproportionate and result in a windfall to Ms Jhuti. The Tribunal substituted a 10% uplift for a lower, 0.5% uplift.

Compensation and Adverse Whistleblowing Findings

This decision is a useful illustration of the elements of compensation an employer might be required to pay in the event of adverse whistleblowing findings. It is also a reminder of the importance of maintaining high standards of conduct both during the course of employment and after, during legal proceedings.

For more information on whistleblowing claims, please contact Michael Halsey in our Employment team on 020 7665 0842, or alternatively, complete the form below.