Employment and Professional Disciplinary E-Bulletin May 2019

Reaching for that Rainbow: Following the Yellow Brick Road

Referenced Cases

  • Chagger v Abbey National Plc [2010] IRLR 47

  • Ur-Rehman v Doncaster Jahia Mosque (2012) UKEAT/0117/12/RN

  • Small v Shrewsbury & Telford NHS Trust [2017] EWCA Civ 882

What’s that Toto?

In a recent case in which I was instructed for the Respondent, the rather intimidating prospect of Stigma Damages raised its head again. Like many of the dark corners of employment law, where we don’t deal with these matters every day, it is necessary to re-learn and re-research, every time the uncommon point comes up. Stigma damages is one such area.

I say intimidating, because at first blush, just like the Wicked Witch of the West, the sums claimed were rather scary – in the region of half a million pounds in this particular case. Yet, the fear quickly recedes when cold water is thrown over the issue, when one looks back at the law which underpins these claims, which is what I had to do.

As the reader will know, there are different types of Stigma damages. One type, following a case called Malik, is a common law claim relating to the contract, but for the purposes of this e-bulletin I only propose to deal with Stigma claims in the Employment Tribunal.

Legal Framework

The leading case is still Chagger v Abbey National Plc, where the unfortunate Mr Chagger was found to have been unlawfully discriminated against by virtue of his race; he being of Asian descent. His redundancy scores had been artificially lowered by his employer, whereas a white employee’s scores had been unmeritoriously raised.

Mr Chagger argued that he was entitled to future losses which stemmed from the stigma that attached to him as a result of his having brought a claim to the Employment Tribunal, arguing that other companies in his chosen field would refuse to take him on because of the stigma that attaches to him as a tribunal litigant, (even a successful one).

The EAT disagreed with Mr Chagger; but the Court of Appeal upheld the principle behind the claim. It held that it was a potentially recoverable head, because it was one of the difficulties that an employee faces when looking for fresh employment, even if it was an unlawful one. But like the fabled Wizard of Oz in the Emerald City, the court promised much but, in the end, declined to act. The Court of Appeal declined to make an award in Mr Chagger’s particular case, preferring to treat it as an aspect of mitigation of his future losses, as opposed to a head of claim in its own right.

Of course, this approach isn’t unusual; many tribunals factor in an element of stigma into their future losses awards, for comparison, those workers who are disabled will often be awarded future losses calculated on an extended duration basis because of the acknowledgment that it is more difficult for a disabled person to find work.

Another aspect of stigma damages is the matter of proof, how does one prove that employment prospects have been affected due to the stigma? This issue occupied the EAT in Ur-Rehman v Doncaster Jahia Mosque, where an Imam who had been dismissed attempted to claim for stigma damages. The claim failed because “the evidence was insufficient to establish stigma was justified”, but again, the principle of stigma damages was maintained.

The next time the question arose in the appellate courts was in a more procedural aspect; in the case of Small v Shrewsbury & Telford NHS Trust. In that case Mr Small, who had been acting in person, had suffered an effectively ‘career ending’ dismissal as a result of whistleblowing. Although he had been largely successful before the Tribunal, he was awarded no future loss beyond the point in time where the Tribunal had found that he would not have been retained further by his employers.

Although he had not specifically advanced a Chagger claim, he nevertheless argued that it was incumbent upon the Employment Tribunal to consider a claim related to the stigma of his position. The Court of Appeal agreed, finding that the Tribunal had before it very explicit evidence that the Claimant was suffering a loss extending into the indefinite future, and probably long-term, partly due to the stigma associated with the circumstances in which he was dismissed and/or his consequent claim against the Trust.

The court went on to say that the Tribunal should have considered what the consequences of that evidence were and remitted the claim to them for that to occur.

A missing yellow brick

Unfortunately, I have been unable to find any record of what happened next to my namesake. It appears likely, however, that the matter was concluded by settlement, because the most recent edition of Tolley’s states that to date, no claims of stigma damages have been awarded in England and Wales. However, I’d treat this bold statement with a degree of caution and qualify it with, “no cases that have reached the EAT or appeal courts”, who knows what judgment of the ET may be out there. It is certainly the case that ‘stigma’ has been reflected within other heads of claim, rather than on a standalone basis.

Conclusions

It is for this reason that, in my view, claims for stigma damages need to be looked at with a degree of scepticism, as it seems that cases like Mr Chagger’s or Mr Small’s have set the bar reasonably high.

I am also happy to state that after my own matter, the hunt for stigma damages continues. The Claimant did not succeed on that particular claim, (and a contributory fault finding of 85% certainly didn’t help the matter). There’s no place like home, click, click, click.

Alec Small

Practice Areas: 
Employment