Small v The Shrewsbury And Telford Hospitals NHS Trust

An Employment Appeal Tribunal will ordinarily permit a new point only in exceptional circumstances, particularly where deciding it would require further factual investigation. A tribunal need consider an unargued matter of its own motion only where it is a familiar and well-established issue which it may be expected to address as a matter of course.

Stigma or labour-market disadvantage may in principle found compensation for future loss, including where lawful dismissal would otherwise end loss. It is not necessary formally to plead that head of loss, although express pleading is good practice. Such claims are unusual and require evidence separating the stigma’s effect from other causes of unemployment. A tribunal is not normally required to anticipate the point without it having been advanced.

The claimant, an agency project manager, succeeded before the Employment Tribunal in a claim arising from dismissal for making a public-interest disclosure. At the remedy hearing he advanced future loss on the basis that he would have become a direct employee of the Trust and remained employed until retirement.

The Tribunal found instead that he would have been dismissed on 14 November 2013. It made no award after that date. In assessing injury to feelings, it found that the absence of a satisfactory reference appeared to have ended his career in his usual labour market.

On appeal, the claimant contended that the Tribunal should have awarded, or considered awarding, stigma loss for future labour-market disadvantage under the principle recognised in [2010] ICR 397. The central issue was whether that unadvanced basis for future loss could be raised for the first time on appeal.

1. Appeal dismissed. The claimant’s proposed stigma-loss argument had not been advanced before the Employment Tribunal. His actual case on future loss was materially different: he claimed that, absent the unlawful treatment, he would have obtained and retained direct employment with the Trust. The Tribunal determined that case by finding that he would in any event have been dismissed on 14 November 2013.

2. Stigma loss is, in principle, recoverable. [2010] ICR 397 recognised that the consequences of unlawful dismissal may affect later employability, and that a separate award may exceptionally be appropriate where lawful dismissal would otherwise mean that stigma is the only future loss. Nor is formal pleading invariably required for a claim analogous to loss of earning capacity: [1985] AC 446 and [1997] PIQR Q71 establish that express pleading is good practice but not an absolute condition.

3. However, a stigma-loss claim is comparatively unusual. It requires careful evidence identifying the extent to which continuing difficulty in finding work is caused by stigma rather than market conditions or other personal factors. The Tribunal’s observations for injury-to-feelings purposes did not resolve that distinct causation and valuation exercise. Further findings might have been needed.

4. The Tribunal’s obligation to consider matters not expressly argued is confined to familiar, routine issues which it may be expected to consider as a matter of course. The approach in [1998] IRLR 172 and [1977] IRLR 218 did not oblige it to anticipate this exceptional and fact-sensitive claim.

5. The appellate discretion to admit a new point is exercised only exceptionally, especially where fresh factual inquiry may be necessary. Finality and fairness required the claimant to advance his whole case below. No error of law was shown in the Tribunal deciding the future-loss case that was actually presented.

• Employment Appeal Tribunal: Appeal dismissed: [2015] UKEAT 0300_14_1905.

• Employment Tribunal, Birmingham & Stoke: At a remedy hearing, the Tribunal found that the claimant would have been dismissed on 14 November 2013 and made no award for future loss after that date. Its decision on quantum was given on 2 April 2014.

• Employment Tribunal, Birmingham & Stoke: In liability reasons delivered on 11 March 2013, the Tribunal found that the claimant was a worker and that his dismissal and detriment were for making a public-interest disclosure.