Small v The Shrewsbury & Telford Hospitals NHS Trust

An employment tribunal acting on a limited appellate remission must not revisit matters which the appellate order has preserved. It may, however, order evidence relevant to the remitted issue, even where that evidence concerns an earlier period whose compensation has already been determined.

In assessing post-termination stigma loss, the tribunal may need to examine the claimant’s job-search history as a whole. That inquiry is distinct from the earlier general assessment of mitigation. A disclosure order remains within the remission where it assists determination of the permitted issue and does not reopen the preserved finding.

The claimant’s temporary engagement ended after he raised asbestos concerns. The Employment Tribunal upheld his protected-disclosure detriment claim under section 47B of the Employment Rights Act 1996 and awarded loss limited to 14 November 2013.

The Court of Appeal, in Small v The Shrewsbury & Telford NHS Trust [2017] EWCA Civ 882, remitted the issue whether the detriment had caused compensable loss after that date. It permitted new evidence and arguments, while preserving the finding that the engagement would have ended on that date.

Before the remitted hearing, the Employment Tribunal ordered third-party disclosure concerning job applications from July 2012 to August 2017. The claimant appealed only insofar as the order covered applications before 14 November 2013. The central issue was whether that order exceeded the scope of the remission.

1. Appeal dismissed. The disclosure order did not exceed the Court of Appeal’s remission. The tribunal remained bound by the preserved finding that the claimant would not have remained engaged after 14 November 2013. It could not reconsider compensation for the earlier period.

2. A tribunal has no jurisdiction on remission to determine matters outside the appellate order. The Tribunal applied Aparau v Iceland Frozen Foods plc (No. 2) [2000] ICR 341 to that uncontroversial limitation.

3. The remitted question was whether the protected-disclosure detriment caused loss after 14 November 2013. Determining that question could require examination of the claimant’s job-seeking efforts immediately after termination and before that date. His case was that stigma prevented him obtaining work throughout the period. The reasons for his lack of success had not previously been determined, and that inquiry differed from the original general finding on mitigation.

4. The Court of Appeal had expressly allowed new evidence and arguments on the remitted issue. The earlier case-management orders also contemplated consideration of the claimant’s entire job-search history. Third-party disclosure concerning the earlier period was therefore directly relevant and did not reopen the preserved remedy finding.

5. Interbulk Ltd v Aiden Shipping Co Ltd (the Vimeira (No. 1)) [1985] 2 Lloyd’s Rep 410 was distinguished. There, an entirely new argument was advanced on remission. Here, the issue remained the permitted claim for stigma loss.

6. The judge also warned, without determining any fraud issue, that allegations of fraud must be carefully pleaded and proved, consistently with Takhar v Gracefield Developments Ltd [2019] UKSC 13. The respondent accepted that it could not pursue such an allegation in the remitted Tribunal proceedings as they stood.

• Employment Appeal Tribunal: dismissed the claimant’s appeal against the Employment Tribunal’s third-party disclosure order.

• Court of Appeal: in Small v The Shrewsbury & Telford NHS Trust [2017] EWCA Civ 882, allowed the claimant’s appeal from the earlier remedy decision and remitted the question of compensable stigma loss after 14 November 2013.

• Employment Tribunal: upheld the protected-disclosure detriment claim on 17 December 2013 and, at the original remedy hearing, limited loss of earnings to the period ending in November 2013.