(see also Detriment, Unfair Dismissal)

Where an employee or a worker has suffered a detriment for making a protected disclosure (or for another reason, see DETRIMENT) the tribunal must make a declaration to that effect and may award financial compensation.

The tribunal may award such an amount as it considers is just and equitable having regard to:

1) the infringement to which the complaint relates;
2) any loss which is attributable to the act, or failure to act, which infringed the claimant's right (s49(2) ERA 1996).

Where an employee (but not a worker) has been dismissed, awards covering that dismissal can be made under the unfair dismissal jurisdiction, and the dismissal will not amount to a detriment (s47B(2) ERA 1996.

Remedy: For detriment (not dismissal) the loss shall be taken to include: any expenses reasonably incurred by the claimant in consequence of the act, or failure to act, to which the complaint relates; and loss of any benefit which the claimant might reasonably be expected to have had but for the act or failure to act (s49(3) ERA 1996).

For the dismissal of an employee, awards can be made under the unfair dismissal jurisdiction.

The tribunal is able to make an award for injury to feelings caused by the detriment (see DETRIMENT), but not if the detriment is the dismissal of an employee. The tribunal may be able to make an award for the injury to feelings of a dismissed worker up to the limit of the non-pecuniary award in unfair dismissal, namely the value of an appropriate basic award.

Gross or net: If the claimant has been dismissed, see the individual awards for unfair dismissal. Otherwise, see DETRIMENT.

Any maximum or minimum: The potential award for detriment is unlimited unless the detriment is termination of the contract of a worker when any compensation must not exceed the compensation that would be payable if the worker had been an employee and had been dismissed for making a protected disclosure. There is currently no limit on the compensatory award (s49(6) ERA 1996), but where the award is for the injury to feelings of a dismissed worker this will be capped at the limit of the non-pecuniary award in unfair dismissal, namely the value of the appropriate basic award if the worker had been an employee.

Adjustments:  Under the detriment provisions, if the tribunal considers that the act or failure to act was caused or contributed to by action of the claimant, it may reduce the award if it thinks that it would be just and equitable to do so (s49(5) ERA 1996).

From 25 June 2013, the tribunal has also been able to reduce the award of compensation by up to 25% if they find that the disclosure was not made in good faith (s49(6A) ERA 1996) (see ADJUSTMENTS).

For unfair dismissal awards, see ADDITIONAL AWARD, BASIC AWARD, COMPENSATORY AWARD.

Mitigation: Under the detriment provisions, the tribunal may reduce the amount if it considers that the claimant has failed to mitigate his/her loss (s49(4) ERA 1996). The duty to mitigate applies to the compensatory award in unfair dismissal.

Tax: The award will be taxable under s401 ITEPA 2003 if the employee has been dismissed, although the tax treatment is unclear in the case of an employee who receives a payment because of suffering detriment but is still employed (see DETRIMENT).

Recoupment: Recoupment will apply if the detriment is the dismissal of an employee.

Compensation cap: The cap does not apply if the employee has been dismissed as a result of making the protected disclosure.

Statutory authorities: ss47B, 49 ERA 1996; s401 ITEPA 2003.

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Extract taken from the forthcoming Employment Tribunal Remedies Handbook 2014, due for publication in March 2014. The book is an A-Z of over 100 employment remedy topics, each one using the standard form set out above - you can read the complete contents here.

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