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Remedies in Whistleblowing Cases

CALCULATING DAMAGES IN WHISTLEBLOWING CLAIMS

COMPENSATION AND REMEDIES

If you win your whistleblowing claim the employment tribunal will want to compensate you for your employer’s behaviour or the money you’ve lost. You should calculate how much compensation you could realistically get as early as possible. This will help you decide whether it is worth starting an employment tribunal claim. For example, if the total compensation you could realistically claim is less than the legal fees you might need to pay, then it may not be worth taking your claim to a full hearing.

Knowing how much compensation you could get can help you work out what is a reasonable sum in a settlement agreement when negotiating with your employer. The information on this page may help you to consider what might be a realistic sum, and what factors the tribunal will take into account when deciding how much to award you.

The employment tribunal can award you different types of compensation or remedies:

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).

What will I need to prepare in advance of my hearing?

Before the final hearing, the tribunal will probably ask you to prepare document called a ‘schedule of loss,’ sometimes referred to as a ‘statement of remedy sought’. This is a document where you set out the loss you have suffered as a result of the unfair dismissal and / or detrimental treatment, and how much compensation you are claiming. The Tribunal might send you a template to do this. We have structured our webpage in accordance with this. You can also use our template schedule of loss and example schedule of loss as guides when preparing your own schedule of loss.

You will also be asked to set out your potential loss in the ET1 form that you complete to submit your claim. Once the ET1 form has been submitted the Tribunal will ask you to complete a more detailed schedule of loss. Bear in mind that you are usually allowed to modify and refine your schedule of loss up until the final hearing.

How Do I Calculate Compensation in Whistleblowing Unfair Dismissal Claims?

The compensation available in whistleblowing unfair dismissal claims is made up of two elements:

the basic award (a fixed sum that you calculate using a standard formula)

the compensatory award (compensation for the actual money you lost because you were dismissed).

You should start by working out what the basic award will be and then calculate the compensatory award.

In both cases, the Tribunal can apply ‘reductions’. The compensatory award can also get an ‘uplift’ for example, if your employer did not follow the ACAS codes of practice.

1. The Basic Award

The basic award is calculated according to a formula set out in Section 119 of the Employment Rights Act 1996, which multiplies length of continuous service, age and a week’s pay at the date of dismissal.

The basic award is capped to a maximum of 20 years continuous employment. A week’s pay is also capped. As of October 2021, the statutory maximum weekly pay you can claim is £544  (please check section 277 of the Employment Rights Act 1996 to ensure this is up to date as this changes every year in April: Employment Rights Act 1996 (legislation.gov.uk)).

As the method to work out statutory redundancy pay is similar to that which is used to ascertain the basic award you can use the Government’s redundancy calculator to work out a realistic estimate of your basic award: Calculate your statutory redundancy pay – GOV.UK (www.gov.uk)

Reductions to the basic award

In certain circumstances the tribunal can reduce the basic award. These circumstances can include the following situations:

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.

2. The Compensatory Award

The compensatory award is for the actual money you have lost because you were dismissed. The aim of the award is to put you back in the position you would have been if you had not been unfairly dismissed; it is not to award you a profit. Unlike other areas of employment law, there is no cap on the maximum amount of compensation that a tribunal can award you if you are successful in your whistleblowing unfair dismissal claim.

There is no fixed formula to calculate the amount, instead the Tribunal will use the principles we set out below and a “just and equitable approach” to decide the compensatory award. The compensatory award includes both past and future loss. You can claim how much money you’ve lost up to the date of the tribunal as a result of being dismissed. If you haven’t found another job or if your new job has a lower salary, you can claim money for the amount of time you think you will be out of work or on a lower salary, after the tribunal has ended.

Bear in mind that the Tribunal will want to see evidence that you are doing all you can to find another job to limit the amount of money you’ve lost.

Loss to the date of the remedies hearing

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.

Future Loss

Assessing future loss is much trickier than past loss, because it is inherently speculative; the tribunal is effectively trying to peer into a crystal ball and establish how much you might have earned had you not been unfairly dismissed.

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.

Uplifts and deductions to the compensatory award

Once the tribunal has established how much financial compensation you may reasonably be entitled to, they will then consider whether any uplifts (additions) or deductions should be made to this amount.

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.

What Do I Need to Do Before the Hearing? Mitigating Your Loss

This is really important. The tribunal wants to see that you have tried to reduce the loss you have suffered as a result of being unfairly dismissed.

For example, if you are still out of work at the start of the hearing the tribunal will want to see that you have tried to find a new job by applying for jobs and attending careers events. You should therefore maintain a record of the job applications, conversations, or reasons that you have been unable to look for or take work, such as illness (in this instance a doctor’s note would be useful).

If the tribunal feels that you have unreasonably failed to mitigate your loss, they will reduce the compensatory award accordingly.

How Do I Calculate Compensation for Detriment Other than Dismissal in Whistleblowing Claims?

If you have suffered because your employer has taken unfair action against you because of whistleblowing but not dismissed you (detriment), the Tribunal can award you

  • Any financial loss you have suffered as a result of the detriment (for instance you have been denied a promotion and therefore lost out on an increase in pay). See above paragraph on loss of earnings for how to calculate this.
  • Injury to feelings.’ This is compensation for non-financial detriment that you have suffered because of your employer’s treatment, such as stress, fear, anxiety, humiliation and/or depression.

If you have been dismissed because of whistleblowing but you suffered a detriment (for instance bullying) for a period before you were dismissed, you can claim both compensation for unfair dismissal and compensation for the non-financial detriment.

The court uses ‘Vento bands’ to decide how much injury to feelings you should be awarded.

There are three bands (or levels) of compensation for injury to feelings awards. The longer the unfair treatment and the more serious the injury (for example and injury that is likely to have a long-term impact), the higher the band. The financial amounts available in each award are quite broad, so once the tribunal has identified which band they think is appropriate they will then consider a number of factors to establish how much you should be awarded within that band.

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 £900 – £9,100.

In cases where the victimisation is considered to be serious, but not the ‘most serious.’ Currently, this can be anywhere between £9,100- £27,400.

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 £27,400 – £45,600.

It is only in rare and exceptional cases that the employment tribunal will award compensation in excess of £45,600.

In all cases where an Injury to Feelings award is claimed, it is likely that that there will be a need for medical information to be disclosed, and sometimes for expert evidence to be provided, which can result in additional costs for preparing the case.

Please note that the Vento bands are updated periodically, these amounts are correct as of April 2021.