Stigma and whistleblowing: Should punitive damages be available in retaliation cases?

This article uses a range of disciplinary perspectives to examine what is meant by stigma and explains that it is a relational concept. It argues that there has been a shift from attributing social stigma to whistleblowing to regarding it as a form of prosocial behavior i.e. something which contributes to the well-being of others. This shift is evidenced by the attempts to establish supportive organisational cultures through the introduction of specialist employer policies and procedures, the existence of protective legislation and the coverage of whistleblowing in the media. Although it is questioned why stigma should still attach to whistleblowing, it is acknowledged that those who suffer reprisals may well seek stigma damages. Thus the article traces the common law and statutory origins of stigma awards and discusses the appropriateness of exemplary/punitive damages in the employment field. In the conclusion, it is advocated that Parliament expressly provides for exemplary/punitive damages to be awarded in employment cases. In addition, practical suggestions are made about how a more positive attitude to whistleblowing can be achieved, including a possible role for criminal sanctions. The author asserts that a more punitive approach is justified because whistleblowing is an important aspect of the human right to freedom of expression which must be fully protected in order to ensure the proper functioning of a democratic society.

This is a pre-copyedited, author-produced version of an article accepted for publication in Industrial Law Journal following peer review. The version of record David Lewis, Stigma and Whistleblowing: Should Punitive Damages be Available in Retaliation Cases?, Industrial Law Journal, Volume 51, Issue 1, March 2022, Pages 62–83, is available online at: https://doi.org/10.1093/indlaw/dwaa032