Whistleblowing payouts threatened by tribunal review

A key aspect of whistleblowing compensation, the “injury to feelings” award, is at risk of being removed following a hearing at the Employment Appeal Tribunal (EAT) this week. This type of compensation, which has been a legal provision for over 20 years, allows whistleblowers to claim for the emotional distress caused by victimisation, such as bullying or unreasonable disciplinary actions, without needing to demonstrate financial loss.

The case of Declan Durey v South Central Ambulance Service NHS Foundation Trust is now under review by the EAT. The decision could have a significant impact on future whistleblowing compensation payouts, which can often include substantial sums for emotional harm. For many whistleblowers who remain employed, “injury to feelings” is the primary compensation they seek.

Currently, whistleblowers who can prove they were victimised (experienced “unlawful detriment”) may receive compensation for their losses, including “injury to feelings,” with no cap on the award. This system is similar to the compensation model used in discrimination claims.

Protect, the UK’s whistleblowing charity, has been allowed to intervene in the case, given its public policy implications. Elizabeth Gardiner, Chief Executive of Protect, highlighted the pervasive victimisation faced by whistleblowers, stating: “Whistleblowers often suffer immense emotional strain and are ostracised, bullied, and discredited. It’s vital that the law continues to provide adequate compensation for the serious emotional harm they endure.”

Gardiner pointed out that the majority of callers to Protect’s legal advice line report experiencing victimisation or feel forced to resign after raising concerns. The potential removal of “injury to feelings” awards could leave many whistleblowers without sufficient legal recourse for the emotional damage caused by their experiences.

Recent high-profile whistleblowing cases have included significant injury to feelings awards:

• In 2023, Ms. Jhuti v Royal Mail Group Ltd resulted in £40,000 for injury to feelings as part of a £2.3 million total award, following bullying from her manager.
• Mrs. McCabe v Selazar Ltd saw a £20,000 award for injury to feelings after she was removed as a director for raising concerns about staff well-being (2022).
• In 2024, Miss Ahmad v Human Relief Foundation was awarded £30,000 after reporting drug use and COVID-19 breaches, leading to her dismissal.

The Employment Appeal Tribunal, scheduled for 12-13 September at the Rolls Buildings in London, will have far-reaching consequences for how whistleblowers are compensated for the emotional toll of their actions. As the case unfolds, whistleblowing advocates await the ruling with concerns about how it could reshape whistleblower protections in the UK.