Niekrash v South London Healthcare NHS Trust

An Employment Tribunal need consider the grounds for aggravated damages that a claimant has advanced in the schedule of loss and written or oral submissions. It has no general duty to search the evidence and earlier liability reasons for every potential aggravating feature.

Aggravated damages compensate additional distress caused by aggravating conduct. They are not punitive and must not duplicate the compensation already awarded for injury to feelings. A tribunal need not analyse separately the descriptions high-handed, insulting and oppressive. It must, however, give adequate reasons for its conclusion on the case presented.

The claimant, a consultant urologist, made protected disclosures about urological services. The Employment Tribunal held that complaints made about him and his exclusion from work were detrimental treatment for making those disclosures. At the remedies hearing it awarded £17,568, including £15,000 for non-pecuniary loss, but refused aggravated and exemplary damages.

Following a preliminary appeal hearing, the only issue permitted to proceed was whether the Tribunal had erred by failing to consider and give proper reasons for rejecting aggravated damages based on conduct said to be high-handed, oppressive or insulting. The claimant contended that the Tribunal should have considered many further alleged aggravating factors.

1. Appeal dismissed. The Tribunal had not erred in refusing aggravated damages.

2. A Tribunal is required to address the aggravating features actually relied on by the claimant in the schedule of loss and in written or oral submissions. It is not obliged to trawl the liability decision, evidence and documents for every possible matter which might support such an award. That conclusion was particularly clear where the claimant had been represented by leading counsel and the omitted matters were not a consequence of any issue concerning an unrepresented litigant.

3. The factors raised at the preliminary appeal hearing did not disclose an error. Some had not been advanced at the remedies hearing. Others were inconsistent with findings that the procedure had been followed, that there was no malice, or that continuation of the exclusion was not inappropriate. The personal impact of exclusion had already been compensated as injury to feelings. The Tribunal had also considered the delayed apology and was entitled to conclude that it did not justify aggravated damages.

4. The Tribunal did not have to analyse separately whether conduct was high-handed, insulting or oppressive. Its approach accorded with Commissioner of Police of the Metropolis v Shaw UKEAT/0125/11/ZT. Aggravated damages concern exceptional conduct which causes additional distress to the particular claimant. The assessment must avoid double recovery where injury to feelings has already been compensated, and the overall award must remain proportionate to the suffering caused.

5. The remedies reasons sufficiently explained why aggravated damages were rejected. They were compliant with the requirement in Meek v City of Birmingham District Council [1987] IRLR 250.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal upheld the Employment Tribunal's refusal of aggravated damages.
• Employment Tribunal, London South: At a remedies hearing, awarded £17,568 for detriment arising from protected disclosures, but rejected aggravated and exemplary damages. The remedies judgment was sent to the parties on 6 July 2010.
• Employment Tribunal, London South: At the liability stage, held that the claimant had suffered detriments because he made protected disclosures. The liability judgment was sent to the parties on 29 January 2010.