Calculating damages in whistleblowing

This is a remedy that is only available in whistleblowing unfair dismissal claims but is very rarely awarded. Its aim is to compensate you for your loss for the time you wait for the full tribunal hearing. You must apply for interim relief within seven days of your dismissal. You can find out more about interim relief here.

The tribunal can also order your employer to re-employ you if you’ve been unfairly dismissed (but this is also very rare) or recommend that your employer re-employ you if you’ve lost your job (again, this is very rare). You must ask for such an order and although it is not a bad idea to ask for them, in practice these are rarely used, they are made in less than 1% of general unfair dismissal cases. However, where a Tribunal considers an employer could have re-employed a Claimant, and the Respondent fails to do so, you may receive additional financial compensation of between 26 and 52 weeks’ pay.

This is the most common remedy in whistleblowing cases, and this is what this webpage is mostly about. Unlike other areas of employment law there is no limit (or cap) on the amount of money that can be awarded in whistleblowing cases. Compensation if you have lost your job because of whistleblowing (automatic unfair dismissal) and compensation if you have suffered because your employer has taken unfair action against you because of whistleblowing but not dismissed you (detriment), are calculated differently (see below).

The tribunal can reduce the basic award anywhere from 0% to 100% if they find that your conduct before dismissal was such that it is fair to reduce the compensatory amount. For example, if you breached data protection laws and were found guilty of gross misconduct.

If your employer offers you the ability to return to your old job on the same terms and you refuse without good reasons, the tribunal may reduce the award to what they think is just and equitable. In practice you can often show it was reasonable to refuse this remedy.

If you were made redundant, the tribunal will reduce the basic award by the amount that you have already received as a redundancy payment.

The tribunal can compensate you for loss of wages from the effective date of dismissal to the remedies hearing, sometimes this can be two years or more. If you have not been in work during this period, then this will be a relatively simple calculation: you can multiply the wage you were earning prior the dismissal by the amount of time between the dismissal and the hearing.

If you have found work in the period between the dismissal, start by working out how much you would be owed had you stayed in the same job, then subtract the money you have earned from new employment during this period whether that be temporary jobs or a full-time job on a lower wage.

When calculating this, you can also factor in overtime you might have been paid and pay rises you would have got if you had not been unfairly dismissed. You will need to provide evidence of all the above so make sure to keep payslips and employment contracts.

Do bear in mind that the Tribunal will want to see that you have tried to ‘mitigate your loss.’ If you have been out of work throughout this period and the tribunal finds that you have not tried hard enough to find another job, they could reduce the compensatory award.

You can also claim for benefits that you would have received during the course of your employment had you not been unfairly dismissed. This can include life insurance, bonuses, commission, and access to a company car

The tribunal can also award expenses that you have incurred in seeking new employment in the period between the unfair dismissal and the hearing. This can include the cost of travel to attend job interviews and networking events, subscription to an industry journal with job adverts, the cost of phone calls linked to finding work and in some circumstances training. For example, if you worked in an industry that is very small and the chance finding similar work within that industry is very limited, the tribunal may award the costs you incur in retraining to enter another profession.

If you had over two years’ service at the date of dismissal the tribunal recognises that when and if you do obtain new employment you will have to start afresh in building up enough service to get the right to claim unfair dismissal. This is called compensation for loss of statutory rights but is usually a relatively small amount of around £300-500.

Any payments you have received from the respondent i.e. pay during the notice period or a sum, and any welfare benefits you have received in the period up the hearing should be deducted from the compensatory award.

If you have not found a new job by the date of the hearing or your new a job has a lower salary and/or less favourable conditions, you can receive compensation for loss of future earnings. The Tribunal will try to identify a cut-off date for future loss, generally no more than two years.  In some (rare) cases, the tribunal can award ‘career long loss.’ Age is a key factor in these cases, and it is most commonly awarded in cases where the claimant is near retirement age.

The Tribunal will look at:

• Whether you would have been dismissed within a short period of time anyway, regardless of the whistleblowing.
• Whether you are elderly or in poor health, and so are unable to find a new work.
• The state of the job market.

Compensation is often paid in a lump sum rather than instalments and so bear in mind that the tribunal may deduct money to ensure that this does not result in profit.

You can also claim compensation for loss of state and occupational pension rights. Pension Loss is difficult to quantify, and the tribunal uses a specific guide (the presidential guidance) to assess how much to award.

In certain circumstances the tribunal may increase or add an ‘uplift’ to the financial award. This is generally where the employer has unreasonably failed to follow the ACAS Code of Practice. If the tribunal thinks it is fair to increase the amount of compensation due to a breach of the Acas Code of Practice on disciplinary and grievance procedures it can do so by no more than 25%.

The tribunal may also reduce the compensatory award to reflect the chance that you would have been dismissed in any event anyway. They will determine a % chance that your employer (not a hypothetical reasonable employer) would have dismissed you for another reason.

For example, the court could find that there was a 100% chance of you being dismissed within the year as your employer was closing down your place of work and making everyone there redundant.

In cases where the act of victimisation is considered to be ‘less Serious’ for example where it was a one-off incident. Currently compensation in less serious cases is between £1,100 – £11,200.

In cases where the victimisation is considered to be serious, but not the ‘most serious.’ Currently, this can be anywhere between £11,200- £33,700.

In the most serious cases, for example where there has been a long campaign of victimization, the tribunal will award compensation within the top band. This can between £33,700 – £56,200.

It is only in rare and exceptional cases that the employment tribunal will award compensation in excess of £56,200.