The Employment Appeal Tribunal (EAT) has held that an Employment Tribunal made an error when it awarded a whistleblowing Police Officer £20,000.00 in aggravated damages.
DS Shaw complained to a superior officer that another colleague had obtained advanced notification of the questions to be asked at an interview for a promotion that the colleague had eventually obtained. This allegation transpired to be true. Despite this the colleague was still allowed to take the promotion and when everything came to light all that happened was that he was reinterviewed using different questions, and still got the job.
The colleague and the superior officer colluded to bring about a situation where DS Shaw was suspended and given notice of disciplinary proceedings for allegedly setting up a private business without permission. An inaccurate note was made on the computer by another senior officer months after the event falsely stating that DS Shaw's application for permission had been refused.
Ultimately the disciplinary action was withdrawn and DS Shaw remained in his employment, suffering no financial loss. He nevertheless claimed at the Employment Tribunal on the basis that the action against him was an unlawful detriment because of whistleblowing. (He also separately brought a claim for personal injury but we need not worry about that here.)
Not surprisingly the Claim in the Employment Tribunal succeeded. The Tribunal was highly critical of the (on the face of it appalling) conduct of his superiors. He was awarded £37,000.00, consisting of £17,000.00 for hurt feelings and £20,000.00 by way of aggravated damages.
The Metropolitan Police appealed to the EAT.
The EAT confirmed that damages for whistleblowers should be calculated in the same way as discrimination cases. This means applying the Court of Appeal's "Vento guidelines" to decide on the damages for hurt feelings. They reminded themselves that aggravated damages are not, like exemplary damages, to punish the Respondent but part of the compensation and need to reflect the aggravating factors causing injury to the Claimant.
On that basis the award of aggravated damages was excessive and was out of line with the awards in other cases in the past - there was only one where an award of £20,000.00 had survived after avenues of appeal had been exhausted.
Taking all of the relevant factors into account they decided that the right total award was £30,000.00 consisting of £22,500.00 for hurt feelings (i.e. an increase) and a reduced award of aggravated damages of £7,500.00.
The EAT accepted that it did not have the authority to change the well-entrenched practice of treating these as separate heads of damages, but did say that there would be a lot to be said for simply making one award for hurt feelings which included any aggravating factors. As a halfway house Tribunals should be encouraged to treat them both as sub-headings of "injury to feelings" in order to remind themselves that aggravated damages are not a punishment to the employer.
There was mention of the fact that the Claimant had spent £20,000.00 on legal costs to get to this stage and whilst the EAT evidently had sympathy with him on this they (with respect quite correctly) held that this could not influence their decision. The Rules did not provide for him to get his costs back from the Met in these circumstances and it would not have been right to increase his damages as a back door way of getting around that fact.
The case is reported here.