The Court of Appeal (CoA) addressed conflicting legal interpretations regarding the scope of statutory protection for whistleblowers, specifically ruling on whether an employee automatically claiming unfair dismissal could also amend their claim to include the dismissal as a protected detriment against a co-worker under the Employment Rights Act (ERA) 1996.
Facts:
This judgement addresses two appeals, which the CoA referred to as ‘Wicked Vision’ and ‘Barton Turns’, concerning the claims an employee can bring under the 1996 Act after being ‘dismissed for whistleblowing’.
Mr. Rice was dismissed by his employer, a company owned by Mr. Strang, on the grounds of redundancy in February 2021. Mr. Rice claimed that his dismissal was automatically unfair, as the principal reason for his removal was that he had made protected disclosures. He subsequently applied to amend his claim to include a detriment claim against the employer, alleging that his dismissal was a detriment in contravention of Section 47B of the Act. The Employment Tribunal (ET) initially granted the amendment. On appeal, the Employment Appeal Tribunal (EAT) disagreed and reversed the decision, ruling that such a claim was barred by Section 47B(2).
Ms. Treadwell was also dismissed shortly after making protected disclosures concerning health and safety (H&S). She brought claims for automatically unfair dismissal under Section 103A. She then applied to amend her claim to include detriments under Section 47B, specifically relying on her dismissal as one of those detriments. The ET allowed the amendment for the non-dismissal detriments but refused to allow the amendment to include her dismissal, arguing that the plain wording of the statute required the term ‘detriment’ to constitute something other than dismissal. Ms. Treadwell appealed the refusal, and the EAT allowed her appeal.
The core issue arose when both claimants sought to amend their claims to include an additional complaint, specifically that their dismissal constituted a detriment inflicted by a co-worker, for which the employer was vicariously liable under Section 47B(1A) and (1B) (Part V) of the 1996 Act.
Decision:
The appeal in Wicked Vision was allowed, while the appeal in Barton Turns was dismissed. The Court ruled that the decision in Osipov was binding on both the ETs below and on the CoA itself.
This principle states that the exclusion, as outlined in Section 47B(2), only bars a direct detriment claim against the employer for its own act of dismissal (under S. 47B(1)). However, it does not bar a claim against a co-worker (under S. 47B(1A)) for the detriment of dismissal. Consequently, if a co-worker is liable for the act of dismissal as a detriment, the employer automatically becomes vicariously liable for that act under Section 47B(1B). This bypasses the statutory bar, effectively allowing the employee to bring a detriment claim against the employer for the act of dismissal itself. Since the employees concerned within the present appeals sought to rely on this vicarious liability route (S. 47B(1B)), the Court was bound to hold that Section 47B(2) presented no bar to the proposed amendments, and thus both appeals should therefore be allowed.
Regarding the specific non-dismissal amendments in Barton Turns, the Court reasoned that the ET and EAT were correct because the addition of “amounted to a detriment” was merely a “re-labelling exercise”.
Implications:
The ruling creates a crucial pathway through which employees may obtain a more comprehensive remedy for the act of dismissal, thereby no longer restricting whistleblowers to a claim of unfair dismissal. This expanded claim is key, given that detriment claims under Part V are the only route to seek compensation for injury to feelings in whistleblowing cases, a remedy which is explicitly unavailable in unfair dismissal claims under Part X. This significantly increases the potential value of any award, particularly in distressing cases.
The detriment claim uses a less restrictive causation test (i.e., the act was executed “on the ground that” the disclosure was made), as opposed to the Part X unfair dismissal test in which the protected disclosure must be the “reason or principal reason” for dismissal. This makes the Part V claim easier to prove, providing a more robust basis for recovery. It also significantly increases the legal risk for employers following a whistleblowing dismissal.
Employees can now pursue the individual co-worker who carried out the dismissal. While this is rare, it is nonetheless an important concession, especially if the company becomes insolvent, as the personal liability remains.
