Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

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.

About Chris Hadrill

Chris is a specialist employment lawyer at Redmans. He specialises in contentious and non-contentious employment matters, including breach of contract claims, compromise agreements and Employment Tribunal cases. He writes on employment law matters on a variety of websites, including Direct 2 Lawyers, Lawontheweb.co.uk, LegalVoice, the Justice Gap and his own blog. Contact Chris by emailing him at chadrill@redmans.co.uk

Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

Share →

Leave a Reply

Your email address will not be published. Required fields are marked *

 

Our awards

Request a callback

    Your first name (required)

    Your last name (required)

    Your email (required)

    Your telephone number (required)

    Brief details of your enquiry

    Contact us

    Please feel free to discuss your own position and concerns. Contact your nearest office on:

    T: 020 3397 3603
    E: enquiries@redmans.co.uk
    W: www.redmans.co.uk

    Testimonials

    4.78 Average

    214 Reviews

    Rebecca A

    I had a wonderful solicitor called Caroline who was so helpful and gave me all the information I need and explained everything in detail so I was crystal clear. Would highly recommend if you are in need of a solicitor!

    Posted 12 hours ago

    Gareth J

    Very efficient, helpful and pragmatic support from Caroline. Happy to work with my requirements / suggestions but also made some very good points which helped to achieve a higher settlement amount. Would highly recommend Caroline and Chris.

    Posted 16 hours ago

    Ellen S

    Excellent, professional, timely. Friendly when I needed it most. Would recommend to anyone.

    Posted 1 day ago

    Ellen S

    Excellent, professional, timely. Friendly when I needed it most. Would recommend to anyone.

    Posted 1 day ago

    Cristina G

    Very professional and reliable. Timely answers, clear and to the point. Always looking for the best for their customers.

    Posted 2 days ago

    Rob T

    Very professional and on target - highly recommended.

    Posted 5 days ago

    Anonymous

    Very efficient service and knowledgeable solicitors.

    Posted 5 days ago

    Anonymous

    Excellent response time from first contact. Quick and easy completion of documents required. Fast response to any queries I made.

    Posted 5 days ago

    Anonymous

    Redmans Solicitors did a great job and were very professional at all times. Would definitely recommend.

    Posted 3 weeks ago

    Gary P

    All good advice, prompt and efficient

    Posted 1 month ago

    Anonymous

    Excellent advice and customer service.

    Posted 3 months ago

    Aneet G

    I would definitely recommend Redmans. Very impressed with service provided. They were extremely proactive in handling my case which made things easier for me. Provided sound advice and resolution. Special credit for this goes to Chris who dealt with my case with great determination and consideration.

    Posted 3 months ago

    Fern M

    Very efficient and friendly

    Posted 3 months ago

    Neville S

    A professional and friendly service, which I would highly recommend.

    Posted 3 months ago

    Daniel T

    Extremely helpful and made a bad situation much more manageable. Where other solicitors seemed disinterested in my situation Redmans immediately made me feel like it was a team effort to achieve a more favourable outcome

    Posted 3 months ago

    Paul T

    Excellent, quick and informative. Chris was a real star and gave me confidence during the uncertainty if a redundancy settlement.

    Posted 3 months ago

    Marina E

    Felt in very capable hands was listened to and given excellent advice. Would not hesitate to recomend and use again if needed.

    Posted 3 months ago

    Rosa B

    Fabulous service all round.

    Posted 3 months ago

    Anonymous

    Redmans were quick to respond to my enquiry and dealt with my case professionally and personably. I received sound advice and was put at ease by Chris Hadrill, Partner.

    Posted 3 months ago

    Alkhas K

    Excellent service.

    Posted 3 months ago

    Mathias G

    Contacted them regarding my end of employment agreement. Chris Hadrill dealt with it and was done and handed back to employer same day more than happy with there service.

    Posted 4 months ago