Claimant permitted to pursue whistleblowing dismissal and detriment claims in respect of same facts
A recent Employment Appeal Tribunal (EAT) decision helps clarify the case law position where a claimant seeks to pursue their employer for whistleblowing detriment where they have been dismissed.
Whistleblowing protection
Whistleblowing is where an employee or worker makes a 'qualifying disclosure' of wrongdoing at work, which they reasonably believe to be in the public interest. If the employee is subject to detriment or is dismissed because they have blown the whistle, they will be protected by law. Section 47B Employment Rights Act 1996 protects whistleblowers from detriment, and section 103A protects them from dismissal.
Detriment or dismissal?
The default statutory position is that protection from whistleblowing detriment will not apply where the detriment complained of is dismissal. In other words, claimants typically have been required to pursue either a dismissal or a detriment claim, with the particular claim pursued being determined by the factual background to the matter.
However, the Court of Appeal in the 2018 case of Osipov demonstrates that the legal position is in reality more nuanced. This case confirmed that employees can bring detriment claims against co-workers for subjecting the claimant to the detriment of dismissal. The Court of Appeal also referred to the possibility of an employer being vicariously liable for whistleblowing detriment in these circumstances.
Factual background
In the case of Treadwell v Barton Turns Development, the claimant was dismissed with insufficient service to bring an ordinary unfair dismissal claim. She brought a claim alleging that the true reason for her dismissal was that she had made protected disclosures to one of the respondent's directors and that her dismissal was automatically unfair under section 103A ERA.
At a preliminary hearing, the claimant applied to make four amendments to her claim. These included a request to add a claim of whistleblowing detriment under section 47B ERA against the respondent, in respect of her dismissal. Importantly, the claimant did not seek to bring proceedings against the director as an individual. Her claim was against the respondent employer only.
The judge refused to allow the claimant to amend her claim on this basis although granted the other requested amendments. The claimant appealed to the EAT.
EAT decision
The EAT allowed the appeal. The EAT judge found that he was bound by the Court of Appeal in Osipov, which stated that:
"it is open to an employee to bring a claim… against an individual co-worker for subjecting him or her to the detriment of dismissal, that is for being a party to the decision to dismiss and to bring a claim of vicarious liability for that act against the employer… All that [the legislation] excludes is a claim against the employer in respect of its own act of dismissal" (emphasis added).
Given the Court of Appeal judgment in Osipov, the EAT refused to take into account more recent EAT case law that contradicts Osipov, and which is itself now subject to an appeal to the Court of Appeal.
Learning points for employers
The factual circumstances will often dictate whether a claimant will pursue a whistleblowing detriment or dismissal claim. However, on occasion the same claimant may pursue both detriment and dismissal claims in relation to the same set of facts. This in particularly advantageous for claimants who seek to claim injury to feelings awards, as these awards are available for successful whistleblowing detriment claims, but not for whistleblowing dismissal claims.