The Employment Rights Act 1996 (NHS Recruitment – Protected Disclosure) Regulations 2018

Amount of compensation

7.—(1) Subject to the following paragraphs, the amount of compensation which the employment tribunal may award must be such as the tribunal considers just and equitable in all the circumstances.

(2) When considering the amount of compensation to award, if any, the tribunal must have regard to the conduct complained of and to any loss sustained by the applicant which was caused by that conduct.

(3) The reference in paragraph (2) to loss sustained by the applicant includes—

(a) expenses which the applicant reasonably incurred because of the discriminatory conduct of the NHS employer; and

(b) the loss of any benefit which the applicant might reasonably be expected to have had but for that conduct.

(4) In ascertaining the loss, the tribunal must apply the same rule concerning the duty to mitigate loss as applies to damages recoverable under the common law of England and Wales or (as the case may be) Scotland.

(5) When considering the amount of compensation, if any, to award, the tribunal may also have regard to—

(a) the actions of the applicant before the conduct complained of; and

(b) whether the applicant acted so as to contribute to or cause, to any extent, that conduct.

(6) If the NHS employer fails without reasonable justification to comply with a recommendation under regulation 6(c), the tribunal may increase its award or, if it has not made such an award, make one.