Veitch Penny LLP - Exeter | Crediton, Devon

Case

Virgo Fidelis Senior School v Boyle
Employment Appeal Tribunal - (26 February 2004)

Issues

(1) Whistleblowing/Protected disclosures
(2) Injury to feelings
(3) Employment Rights Act 1996

Facts

Mr Boyle was employed as a Physics and Maths Teacher at the school. He expressed his concerns at the number of allegations of bullying made against him. He was concerned about the state of affairs at the school, and urged his trade union to make a formal complaint to the governors. The union did not do so, and Boyle wrote to the school outlining his discontent.

Boyle was then dismissed for gross misconduct. He commenced proceedings for unfair dismissal and victimisation because he had made a public interest disclosure. He was successful with his claim. He was awarded £42,500.00 for injury to feelings, and approximately £1,700.00 for loss of earnings.

The employer appealed, arguing that the original Tribunal should have considered comparable awards in sex or race discrimination claims, and the guidelines established in the case of Vento –v- Chief Constable of West Yorkshire Police.

Boyle cross-appealed the Tribunal’s decision because it had refused to award aggravated and exemplary damages. He also submitted that the Vento guidelines did not apply to a case such as this.

Decision

The Employment Appeal Tribunal found that the Tribunal had been incorrect not to refer to the Vento guidelines.



Detriment under the whistleblowing legislation was a very serious form of discrimination. To compensate for the offence rather than resulting injury and psychiatric damage would have offended against the general principle that the aim in discrimination claims was not to punish but to compensate. It was important to maintain consistency in awards through all areas of discrimination. Accordingly, the Appeal Tribunal replaced the award for injury to feelings with £25,000.00.

The Tribunal had also erred in concluding that it did not have the authority to make an award of aggravated damages, and awarded Boyle £10,000.00.

Boyle’s appeal from the Tribunal’s refusal to order payment of exemplary damages was dismissed. Exemplary damages may be available in circumstances where government servants had acted oppressively or unfairly. On the evidence of this claim, this was not the case.

Comments

This case confirms that the Vento guidelines on injury to feelings in discrimination cases also apply to whistleblowing cases. Given the seriousness of the case the employer’s appeal was allowed and the award was reduced to the top band of Vento: £25,000.00. The cross-appeal was allowed in part by holding that Vento allowed the award in addition of aggravated damages.