Comr of Police of the Metropolis v Shaw

Compensation for unlawful detriment for making a protected disclosure is assessed on the same basis as compensation for discrimination. It may include injury to feelings and, where appropriate, aggravated damages. Aggravated damages are compensatory, not punitive. They compensate only additional distress caused by the manner, motive or subsequent conduct connected with the wrong. The assessment must focus on the claimant’s experience, avoid double counting, and make the total award fair and proportionate. The seriousness of the respondent’s conduct is relevant only so far as it evidences distress, not as a basis for punishment. The established English practice of separately identifying aggravated damages was retained, although a single overall award was regarded as preferable. The award was reduced from £37,000 to £30,000.

The respondent, a police officer, made protected disclosures about alleged misconduct by a colleague. He was then subjected to unfounded disciplinary proceedings and removed from his department. Liability for unlawful detriment under Part IVA of the Employment Rights Act 1996 was established and was not appealed.

At the remedy hearing, the Employment Tribunal awarded £17,000 for injury to feelings and £20,000 for aggravated damages. It excluded compensation for psychiatric injury by agreement. The Commissioner appealed against the amount of compensation. The central issues were the nature of aggravated damages, their relationship with injury to feelings, and whether the total award was excessive.

1. Disposition. The appeal was allowed. The EAT substituted compensation of £30,000 for the Employment Tribunal’s award of £37,000. The separate £1,000 costs award was undisturbed.
2. Basis of compensation. Following Virgo Fidelis Senior School v Boyle [2004] ICR 1210, unlawful detriment for making a protected disclosure under Part IVA of the Employment Rights Act 1996 is treated as a statutory tort. Compensation is assessed on the same basis as in discrimination claims. There is no special or enhanced basis for whistleblower claims.
3. Aggravated damages. The EAT adopted the compensatory approach derived from Rookes v Barnard [1964] AC 1129. Aggravated damages are not punitive and must not be used to punish the respondent or express indignation. They compensate additional distress caused by the manner of the wrong, the respondent’s motive, or conduct after the wrong which is connected with it. The aggravating feature must have increased the claimant’s distress; motive will assist only if the claimant was aware of it.
4. Assessment. The focus must be on the additional distress caused to the particular claimant. Tribunals must avoid double counting between injury to feelings, aggravated damages and psychiatric injury. The correct question is whether the total award for non-pecuniary loss is fair and proportionate. A focus on the seriousness of the respondent’s conduct, without findings about its impact on the claimant, risks introducing a punitive element.
5. Application. The Tribunal wrongly treated some features forming part of the detriment itself as aggravating features, relied on conduct of which the claimant might have been unaware, and drew a false distinction between injury to feelings and aggravated damages. Its £20,000 aggravated-damages award was outside the conventional range and the overall £37,000 award was excessive. The appropriate overall award was £30,000, which could notionally be divided into £22,500 for core injury and £7,500 for aggravation.

1. Employment Appeal Tribunal: Allowed the Commissioner’s appeal against the remedy award and substituted compensation of £30,000.
2. Employment Tribunal, Central London: Found unlawful detriment and awarded £37,000 compensation, comprising £17,000 for injury to feelings and £20,000 aggravated damages.