Court of Appeal confirms employees can bring whistleblowing detriment claims for dismissal

How does whistleblowing protection work?

When someone raises concerns about wrongdoing at work, the law protects them in two separate ways. The first protection relates to dismissal. If a person is dismissed because they raised a protected concern, that dismissal will usually be automatically unfair. The second protection applies to other forms of harmful treatment, such as being sidelined, denied opportunities or subjected to unjustified criticism because they spoke up.

These routes normally operate independently. Dismissal is dealt with under one regime, and other forms of detriment under another. Only the detriment regime carries vicarious liability, meaning an employer can potentially be held responsible for the behaviour of colleagues who mistreat a whistleblower. That concept does not apply to dismissal protection, which treats dismissal as an act of the employer.

A longstanding difficulty arises where the harmful treatment alleged is the dismissal itself. The legislation says that detriment protection does not apply where the issue complained about “amounts to dismissal”. This has created uncertainty about whether an employee can still rely on detriment protection if the dismissal is said to have been influenced by whistleblowing. Previous case law had taken the view that they could, by treating a colleague’s involvement in the dismissal decision as a form of detriment for which the employer was responsible.

The joined appeals in Rice v Wicked Vision and Barton Turns v Treadwell required the Court of Appeal to consider whether that approach should continue.

What did the Court of Appeal decide?

The Court of Appeal confirmed that employees may, in some circumstances, treat the dismissal itself as a form of detriment where a colleague is alleged to have played a role in that decision because of whistleblowing. An employee does not have to bring a claim against the colleague personally in order to pursue the employer for that detriment.

However, the Court reached this conclusion reluctantly. It explained that, if deciding the issue afresh, it would have held that detriment protection does not extend to dismissal and that dismissal should sit entirely within the dismissal regime. Despite this, it was bound by an earlier Court of Appeal decision that interpreted the law differently. As a result, it was obliged to follow that approach.

In practical terms, this meant allowing the employee’s appeal in Wicked Vision and dismissing the employer’s appeal in Barton Turns. The Court recognised that the conflicting interpretations across the case law are unsatisfactory and noted that only the Supreme Court or Parliament can resolve the inconsistency.

Why does this matter for employers?

The decision confirms that dismissal decisions may now be examined under both the unfair dismissal and detriment regimes where whistleblowing is involved. This broadens the employer’s potential exposure. Unlike unfair dismissal claims, detriment claims follow a different legal test and can include compensation for distress or upset.

The ruling also reinforces that employers can be responsible for the actions of colleagues involved in a dismissal process. If a colleague allows the fact that someone has blown the whistle to influence their part in a dismissal, the employer may face liability even if senior decision-makers were unaware.

Employers should ensure that protected disclosures are handled sensitively and that any subsequent disciplinary, performance or restructuring decisions are kept entirely separate. Managers involved in decision-making should understand their responsibilities, and whistleblowing processes should be clear, fair and well-documented.

Learning points

The decision confirms that dismissal-related detriment claims remain available for the time being. Employers may wish to keep this area under review, as the position could change if the issue progresses to the Supreme Court or is addressed by Parliament.

For more information or advice, please contact Sharmin Chowdhury in our Employment team.