Small v The Shrewsbury and Telford Hospitals NHS Trust

An Employment Tribunal should consider for itself a compensation issue that is sufficiently obvious and well established on the material before it, even where the claimant has not expressly raised it. In a claim for unlawful dismissal-related detriment, the period for which the claimant would have remained engaged is not an automatic cut-off. Evidence of continuing labour-market disadvantage may require consideration of a Chagger claim, including stigma-related loss. Rejection of an ambitious claim to permanent employment does not waive an obvious alternative claim merely because both concern future loss. The issue may be remitted, with the existing award preserved and the parties allowed to address relevant further evidence.

The appellant was engaged by the respondent on a temporary, self-employed basis and was dismissed after raising concerns about asbestos exposure. An Employment Tribunal found unlawful detriment contrary to section 47B of the Employment Rights Act 1996 and awarded compensation, but assessed loss of earnings only until 14 November 2013, when it found the engagement would have ended.

The Employment Appeal Tribunal dismissed the appeal. The central issue before the Court of Appeal was whether the Employment Tribunal should nevertheless have considered post-November 2013 loss, including a possible Chagger claim, on the evidence available to it.

Appeal allowed. Underhill LJ delivered the judgment, with Lloyd Jones LJ agreeing.

1. The Employment Tribunal had before it explicit evidence that the appellant’s loss continued indefinitely and was probably long-term. Its findings on injury to feelings and aggravated damages also indicated that the dismissal appeared to have been career-ending. In those circumstances, the Tribunal should have considered whether compensation was due for pecuniary loss after 14 November 2013.
2. The period for which a claimant would otherwise have remained engaged by the respondent is not an automatic cut-off in assessing compensation. A Chagger claim may include loss caused by disadvantage on the labour market after that period. Stigma loss may ordinarily feed into the overall assessment of loss of earnings, although unusual cases may justify separate quantification: Chagger v Abbey National plc [2010] ICR 397.
3. The Tribunal’s duty to consider points arising as a matter of course is not universal. It depends on whether the point is sufficiently obvious and well established in the circumstances. Here, the possible Chagger claim was an obvious alternative or fallback to the appellant’s specific claim that he would have obtained permanent employment. The fact that both claims could be described as claims for future loss did not mean that the alternative had been abandoned.
4. The case was remitted to the Employment Tribunal for consideration of the Chagger claim. The existing award was not affected. The finding that the appellant would have continued working for the Trust until, but not beyond, 14 November 2013 was to stand, but both parties could adduce further evidence and make further submissions relevant to the remitted issue, including mitigation.

• Court of Appeal (Civil Division): in [2017] EWCA Civ 882, allowed the appeal and remitted the compensation issue to the Employment Tribunal.
• Employment Appeal Tribunal: Langstaff J dismissed the appeal, holding that the possible Chagger claim was not sufficiently obvious to require consideration and that there were no exceptional circumstances for taking the point for the first time on appeal.
• Employment Tribunal: found unlawful detriment contrary to section 47B of the Employment Rights Act 1996 and awarded compensation. It assessed loss of earnings only to 14 November 2013.