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Whistleblowing Payouts at Risk as Tribunal Considers Removal of Injury to Feelings Compensation

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A type of compensation claim that has been enshrined in law for more than 20 years* is under threat at a hearing taking place this week. 

In the Employment Appeal Tribunal between Declan Durey and South Central Ambulance Service NHS Foundation Trust there is a risk that the established “Injury to Feelings” award for whistleblowers could be 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 aims 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 serious consequences to future compensation payouts – which can mount up to tens of thousands of pounds. Indeed, for any whistleblower who remains in their job, injury to feelings can be the main compensation claimed. 

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, has been given permission to intervene in the case before the Employment Appeal Tribunal (EAT) as the case gives rise to important issues of public policy.  

Elizabeth Gardiner, Chief Executive at Protect, said: 

“Far too often whistleblowers are hurt and damaged by the way they’re treated. The stress and strain of blowing the whistle and speaking up to authority is immense – whistleblowers are treated badly by their colleagues: they are ostracised, bullied and discredited. Whistleblowing law is there to address the harms done and to ensure that these seriously injured feelings are recognised. 

Victimisation of whistleblowers is pervasive – three quarters of the callers to our legal advice line raise concerns about victimisation or feel forced to resign after raising their concerns. Every day our team of legal advisers speak to whistleblowers who experience distress and mental health problems. 

Whistleblowing law is meant to be there to protect people who act responsibly and speak up about wrongdoing in the workplace. Of course employers should not treat whistleblowers badly, but it is vital that the law provides adequate compensation in the event of retaliation by their employer.” 

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). 

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