Employees who are dismissed for blowing the whistle and who want to claim compensation generally need to mitigate their loss by applying for other jobs. In Hilco Capital Ltd v Harrington, the Employment Appeal Tribunal (EAT) held that tribunals must ask for evidence when a claimant argues there was no point in applying for other jobs because she had already been stigmatised as a whistle blower.
Basic facts
Ms Harrington was dismissed in October 2017 from Hilco Capital Ltd, a financial services company, on the ground of redundancy arising from a reorganisation. She lodged a tribunal claim for unfair dismissal on the basis that she had made a protected disclosure (blown the whistle) about serious financial irregularity at the company.
Tribunal decision
After the tribunal upheld her claim, the matter came back to a remedy hearing in November 2020. At that point, Ms Harrington gave evidence that although there were jobs that she could have applied for in the interim period, she had not done so because she was known in the industry as a whistle blower and would be stigmatised accordingly.
Accepting her argument, the tribunal decided that her failure to apply for any jobs (and thereby mitigate her considerable loss of earnings and benefits) was not unreasonable. It calculated her compensatory award at £151,026 reflecting a period of loss spanning 85 weeks.
The company appealed, arguing that by failing to question Ms Harrington’s assertion that she would be stigmatised when applying for a job, the tribunal had misapplied the case of Abbey National plc v Chagger (weekly LELR 150). This made clear that evidence is required to support a claim that an employee has suffered stigma losses as a result of dismissal. The company also argued that the tribunal was wrong to have awarded loss of earnings for a period “that was significantly greater than was just and equitable in the circumstances of the case”.
EAT decision
Allowing the appeal, the EAT held that in a case where an employee has made no job applications at all, the employer is entitled to argue that they have acted unreasonably. Where the employee relies on stigma, they need to put forward some evidential basis in support of their case which the tribunal can then evaluate.
In this case, however, the tribunal had simply accepted Ms Harrington’s assertion that there was no point in applying for any jobs because the fact that she had been a whistle blower would inevitably emerge at interview. Instead, the tribunal should have asked her for evidence to back up that assertion.
The tribunal was, therefore, wrong to decide that it was reasonable for Ms Harrington not to have looked for or applied for any jobs at all during the period in question without providing any evidence to support her argument that she would inevitably be unsuccessful.
It remitted the matter to the same tribunal for further consideration.