Action by the whistleblowing charity Protect has helped retain the ability for whistleblowers to get compensation for their non-financial losses.
In the Employment Appeal Tribunal between Declan Durey and South Central Ambulance Service NHS Foundation Trust there was a risk that the established “injury to feelings”* award for whistleblowers could have been dismantled.
An “injury to feelings” award compensates individuals for the emotional distress caused by acts of victimisation by their employers – such as bullying, ostracising, unreasonable performance management or disciplinary action. It exists to acknowledge and address the hurt and suffering workers experience when blowing the whistle and is not dependent on the individual experiencing any financial loss.
Any change to the current access whistleblowers have to “injury to feelings” compensation would have had serious consequences to future payouts – which can be the main compensation claimed for any whistleblower who remains in their job.
Due to the career damaging nature of whistleblowing, there is no upper limit on the amount of money that can be awarded under current legislation. If the claimant can show that they have been victimised (experienced “unlawful detriment”) then the tribunal can award compensation based on the losses suffered and make an award for injury to feelings in a similar way to discrimination claims.
Protect, the UK’s whistleblowing charity, was given permission to intervene in the case before the Employment Appeal Tribunal (EAT) as the case gave rise to important issues of public policy.
Elizabeth Gardiner, Chief Executive at Protect, said:
Notes to editors:
For more information, and to arrange an interview, please contact:
Mark Ellis, Head of Commmunications
press@protect-advice.org.uk
*Injury to feelings compensation has been available for whistleblowers since the case of Virgo Fidelis School v Boyle [2004] ICR 1210. Mr Boyle, a teacher, raised concerns about bullying and sexual harassment and was then subjected to disciplinary action and dismissed. The Employment Appeal Tribunal confirmed that Mr Boyle’s treatment should be compensated. His award for loss of wages was only £1,755 as he had quickly found another job, but the injury to feelings award was £25,000. The EAT held that whistleblowing was a form of discrimination, and the Vento guidelines should apply – in this case Mr Boyle was awarded at the top end of the Vento bands as this was “a very serious case meriting a very high award”.
Recent examples of whistleblowing claims with high injury to feelings elements include:
- Jhuti v Royal Mail Group Ltd: Ms Jhuti suffered a campaign of bullying from her manager and was awarded £40,000 for injury to feelings, as part of an overall award of over £2.3 million (2023).
- McCabe v Selazar Ltd: Mrs McCabe was removed as a director of the company after raising concerns about the mental health and wellbeing of staff and was awarded an overall injury to feelings award of £20,000 plus interest of £3,235.07 (2022).
- Ahmad v Human Relief Foundation: Miss Ahmad blew the whistle on drug taking and breach of Covid-19 restrictions in a charity during the pandemic lockdown and was then removed from the staff social media accounts and told to leave by the CEO before being dismissed unfairly. She was awarded £30,000 for injury to feelings (2024).
The Employment Appeal Tribunal took place on Thursday 12 – Friday 13 September 2024.
Mr Declan Durey v (1) South Central Ambulance Service NHS Foundation Trust (2) Protect (Intervenor): [2024] EAT 173
Employment Appeal Tribunal Judgment of Judge Auerbach on 8 November 2024: https://www.gov.uk/employment-appeal-tribunal-decisions/mr-declan-durey-v-1-south-central-ambulance-service-nhs-foundation-trust-2-protect-intervenor-2024-eat-173