Niekrash v South London Healthcare NHS Trust – whistleblowing and aggravated damages

Niekrash v South London Healthcare NHS Trust is a “whistleblowing” claim in the Employment Tribunal which has been appealed by the Claimant on the point of remedy – specifically because he was not awarded aggravated damages by the Employment Tribunal.

The facts in Niekrash v South London Healthcare NHS Trust

Mr Niekrash (“the Claimant”) commenced employment as a consultant urologist with the Queen Elizabeth Hospital NHS Trust in January 2000. During the course of his employment he was promoted to “lead urologist” and was described as an excellent clinician.

Between 2002 and 2008 the Claimant started to complain to management at his successor employer, the South London Healthcare NHS Trust, about the provision of urological services, particularly relating to cancer.  The employees handling the management of the services, Dr Power and Ms Weichart, were offended by the “forceful” language the Claimant used and an investigation was started into the Claimant’s behaviour on 9 April 2008. The Claimant was “excluded” under the Respondent’s relevant procedure and an investigation was undertaken, concluding on 5 June 2008. The Claimant was then reinstated.

The Claimant subsequently submitted a “whistleblowing” claim to the Employment Tribunal, asserting that he had suffered the detriment of being excluded from his employment and that he had suffered stress and lost private practice income as a result of this.

The Employment Tribunal found in the Claimant’s favour and awarded Mr Niekrash £15,000 for non-financial losses (damage to health and damage to reputation) and £2,568 for financial losses. The Tribunal declined to make an award of aggravated damages. The Claimant appealed against this.

The law relating to aggravated damages in “whistleblowing” claims

In whistleblowing cases compensation (unlike “ordinary” unfair dismissal cases) is not capped. Workers (and employees) can be awarded damages for both non-financial (injury to feelings, loss of reputation, personal injury) and financial (loss of past and future earnings).

Aggravated damages can be awarded in addition to injury to feelings in whistleblowing claims. However, such awards are rare in practice. They are awarded in only the most serious cases where the behaviour of the other party has aggravated the Claimant’s non-financial loss and are normally awarded where the Claimant can demonstrate that there has been “high-handed, malicious, insulting or oppressive” conduct on the behalf of the Respondent. Intention is an important factor.

The Employment Appeal Tribunal’s judgment in Niekrash v South London Healthcare NHS Trust

The Employment Appeal Tribunal rejected the Claimant’s argument that he should have been awarded aggravated damages for the conduct of the Respondent. The Employment Appeal Tribunal considered that a clear argument for the awarding of aggravated damages had not been made out by the Claimant at the Employment Tribunal and that the Employment Tribunal was not obligated to trawl through the evidence to substantiate an award of aggravated damages. In particular, the Claimant did not demonstrate on the balance of probabilities that the Respondent’s behaviour was malicious, high-handed, insulting or oppressive.

Our thoughts

The case of Niekrash v South London Healthcare NHS Trust demonstrates  that it is important to get the Schedule of Loss correct “first time round” and to plead all points relating to remedy at the Employment Tribunal. Failure to do so may mean that the Tribunal will fail to deal with these points. Further, as is clear in this case, the Tribunal is not obligated to “trawl” through the evidence before it to determine whether the test for aggravated damages (and, on a wider level, other areas related to remedy) has been met.