Small v The Shrewsbury and Telford Hospitals NHS Trust

The Court of Appeal allowed the appellant's appeal against the Employment Appeal Tribunal's dismissal of an attack on an Employment Tribunal remedy award. The court held that where an Employment Tribunal has before it cogent material indicating that a claimant has suffered ongoing loss after the period for which the respondent employer would have retained him, the Tribunal should consider whether a so-called "Chagger" claim (including stigma loss arising from bringing proceedings) is made out even if the claimant in person did not expressly formulate the point. The court relied on the principles in Chagger v Abbey National plc regarding assessment of future loss and stigma loss and on authorities recognising a tribunal's duty to take certain matters into account as a matter of course, but emphasised that the obligation is not universal and depends on whether the alternative head of loss is sufficiently obvious from the material before the tribunal.

Accordingly the Court of Appeal remitted the matter to the Employment Tribunal to consider the Chagger claim and any stigma loss, leaving the original award otherwise intact. The tribunal's factual finding that the appellant would have been employed by the Trust only until 14 November 2013 was to stand.

Background and parties: The appellant, engaged on a temporary self-employed basis by the Trust as a project manager in May 2012, was dismissed with immediate effect on 23 July 2012. He said the dismissal arose from his attempts to have previous occupiers warned of possible asbestos exposure. The Employment Tribunal found the dismissal amounted to an unlawful detriment contrary to section 47B of the Employment Rights Act 1996.

Procedural posture: The Employment Tribunal (decision promulgated 17 December 2013; remedy judgment sent 3 April 2014) awarded compensation including loss of earnings limited to the period until 14 November 2013, injury to feelings and aggravated damages. The appellant appealed to the Employment Appeal Tribunal on a number of grounds but proceeded there only on the single point that, if the Tribunal did not accept his primary case that he would have been retained permanently, it should nevertheless have considered a Chagger claim for loss after the period he would otherwise have worked for the Trust. The Employment Appeal Tribunal (Langstaff J) dismissed that appeal. The appellant then appealed to the Court of Appeal.

Nature of relief sought: Compensation for loss of earnings (including future loss until anticipated retirement) and non-pecuniary loss; on appeal the discrete relief sought was a direction that the Employment Tribunal should have considered and/or should reconsider a Chagger claim and any related stigma loss.

Issues before the Court of Appeal:

1. Whether the Employment Tribunal was under a duty to consider a Chagger claim (including stigma loss) even though the appellant, a litigant in person, had not expressly pleaded it.
2. If so, whether the Employment Appeal Tribunal was correct to refuse to permit the point to be taken for the first time on appeal.

Court's reasoning and disposition: The Court of Appeal accepted that tribunals have a duty to take certain well-established heads of claim into account as a matter of course, particularly when dealing with litigants in person, but emphasised that the duty applies only where the alternative head of loss is sufficiently obvious from the material before the tribunal. Applying that test, the court held that the Employment Tribunal should have considered a Chagger claim in this case: the appellant had given detailed evidence of continued inability to obtain work, had produced documentary material about numerous job applications, and the Tribunal itself had found that the dismissal appeared to be "career-ending." Those factors made a Chagger/stigma claim an obvious alternative which the Tribunal ought to have considered. The Court remitted the matter to the Employment Tribunal for consideration of that claim, leaving the existing awards undisturbed and maintaining the Tribunal's finding that the appellant would have been employed only until 14 November 2013. The court invited the parties to consider settlement or mediation and allowed further evidence or argument on remission as appropriate.

Appeal allowed. The Court of Appeal held that the Employment Tribunal ought to have considered whether the appellant had a Chagger claim (including possible stigma loss) after 14 November 2013, given the appellant's evidence of ongoing market disadvantage and the Tribunal's own finding that the dismissal was effectively "career-ending"; the matter was remitted to the Employment Tribunal for consideration of that head of loss while preserving the Tribunal's finding that employment with the Trust would have ended on 14 November 2013 and leaving the existing awards intact.

Employment Tribunal decision finding unlawful detriment under section 47B and awarding compensation (decision promulgated 17 December 2013; remedy judgment sent 3 April 2014). Appeal to the Employment Appeal Tribunal (Langstaff J), which dismissed the appeal. Appeal to the Court of Appeal ([2017] EWCA Civ 882), which allowed the appeal and remitted the case to the Employment Tribunal.