Key takeaways
Employers can be liable for dismissals executed by a co-worker
Vicarious liability can attach to the employer for detriment of dismissal.
Dual claims strategy is now common
Workers often plead both detriment and unfair dismissal to maximise remedies and evidential flexibility.
Legal uncertainty persists
Only the Supreme Court or Parliament can resolve conflicting interpretations.
The Court of Appeal has recently considered the scope of the whistleblowing legislation as it applies to dismissed employees and, specifically, whether employers can be held to be vicariously liable for a whistleblowing detriment amounting to a dismissal.
Legal background
Workers who blow the whistle about wrongdoing (whistleblowing) are given legal protection against:
detrimental treatment by their employer (under s47B(1) ERA 1996);
detrimental treatment by their co-workers / the employer’s agents (under s47B(1A) ERA 1996); and
dismissal (under s103A ERA 1996).
However, s47B expressly confirms that it “does not apply where the worker is an employee, and the detriment in question amounts to dismissal (within the meaning of Part X)” (s47B(2) ERA 1996). For the sake of brevity, we will call this the ‘Dismissal Exception’. At face value, this Dismissal Exception requires dismissed employees complaining about their dismissal to bring automatically unfair dismissal claims (under s103A ERA 1996) instead of detriment claims.
However, the Court of Appeal has previously held (Timis and another -v- Osipov [2018] IRLR 52):
That a dismissal executed by a co-worker could constitute an unlawful detriment under section 47B(1A), which covers detrimental treatment by co-workers and/or the employer’s agents; and
Such a ‘detriment of dismissal’ claim was not blocked by the Dismissal Exception, so the employer can be held vicariously liable for it.
It is set against this legal backdrop that the Court was considering the scope of the whistleblowing legislation as it applies to ‘detriment of dismissal’ claims and, specifically, whether its earlier Osipov decision was correctly decided.
Factual background
The Court was considering two separate whistleblowing claims that were linked at the appeal stage. Both claimants had initially claimed that their dismissal was automatically unfair on whistleblowing grounds. They had then, subsequently, sought permission to add ‘detriment of dismissal’ claims – arguing that their employer was vicariously liable for the acts of their co-workers (a director / manager) in subjecting them to the detriment of dismissal. Each employment tribunal had reached a different conclusion regarding permission to amend the claim and the EAT went on to allow appeals in both cases (leaving conflicting EAT decisions). Both cases were appealed further.
Court of Appeal decision
The Court, rather reluctantly, confirmed that employees can bring whistleblowing claims on the basis that their employer is vicariously liable for the actions of their co-workers who had subjected them to the ‘detriment of dismissal’ because of their whistleblowing. The Court made it clear that it disagreed with the Osipov decision – it considered that the Dismissal Exception barred such ‘detriment of dismissal’ claims – but held that it was nevertheless bound to follow it. The Court noted that only the Supreme Court or Parliament can finally settle the dispute.
Where does this leave us?
The Court of Appeal’s decision in Osipov lives on to fight another day, for now at least!
In practical terms, this means that employees bringing whistleblowing claims will likely plead both detriment (under s47B ERA 1996) and automatically unfair dismissal (under s103A ERA 1996). This is relevant for the following key reasons:
Causation: establishing an automatically unfair dismissal requires the whistleblowing to be the sole or principal reason for dismissal, whereas in a detriment claim it is only necessary to show that the whistleblowing ‘materially influenced’ the detrimental treatment;
Burden of proof: the burden of proof applies in a slightly different way to detriment and automatically unfair dismissal claims; and
Compensation: a tribunal cannot award non-financial losses for unfair dismissal, whereas in a detriment claim the tribunal can also make an injury to feelings award.
We understand that permission to appeal the decision to the Supreme Court has already been granted.
