Can an employee allege their dismissal is a detriment for whistleblowing? And why does this distinction matter?

Under the Employment Rights Act 1996, a worker can bring a claim if they are subjected to a detriment or are dismissed for having made a protected disclosure. 

The distinction between detriment and dismissal claims is significant because different legal provisions apply. It's much easier to establish a detriment claim because all that's required is for the worker to show that their protected disclosure materially influenced their treatment. Whereas, if the employee has been dismissed they have to show that the sole or principle reason for their dismissal is their protected disclosure. 

In Rice v Wicked Vision Limited and Barton Turns Developments Limited v Treadwell, the Court of Appeal had to decide whether dismissal can, in some circumstances, amount to a detriment. 

The law

A protected disclosure occurs when a worker discloses information to a particular person (usually their employer) which, in their reasonable belief, is made in the public interest and shows one or more of the following types of wrongdoing: criminal offence, breach of any legal obligation, miscarriage of justice, danger to the health and safety of any individual, damage to the environment, or the deliberate concealing of information about any of these. 

Under section 47B(1) of the Employment Rights Act 1996, a worker who has made a protected disclosure has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by their employer. 

A worker also has the right under section 47B(1A), not to be subjected to any detriment by any act, or any deliberate failure to act, done by a co-worker in the course of that co-worker's employment, on the ground that the worker has made a protected disclosure. An employer can be held vicariously liable for the co-worker's actions under section 47B(1B), unless it took all reasonable steps to prevent the co-worker's actions. 

However, section 47B(2) disapplies that provision where the worker is an employee and “the detriment in question amounts to a dismissal (within the meaning of Part X).” Part X provides for unfair dismissal protection including section 103A ERA 1996 which states that an employee is automatically unfairly dismissed where the reason, or principal reason, for the dismissal is because they have made a protected disclosure.

In 2018 the Court of Appeal threw a spanner in the works. It found in Timis & Anor v Osiprov & Anor that section 47B(2) doesn't really mean what it appears to say. It said this section prevents an employee from bringing a detriment claim under section 47B(1) directly against their employer if they are dismissed. But it does not prevent that worker from bringing a claim against a co-worker who was involved in the decision to dismiss for subjecting them to the detriment of dismissal, and then bring a claim against their employer for vicarious liability.  

Facts of Rice v Wicked Vision Limited

Mr Rice, head of UK sales, was made redundant. He claimed that his dismissal by Mr Strang, the owner of Wicked Vision Ltd, was because he had made protected disclosures and argued that his dismissal was automatically unfair. Shortly before a case management conference, he sought to include a detriment claim. He identified four detriments, one of which was his actual dismissal by Mr Strang. The tribunal granted his application to amend but on appeal, the EAT argued that section 47B (2) ERA 1996 barred such a claim because dismissal cannot be the detriment relied on. 

Mr Rice appealed to the Court of Appeal. 

Facts of Treadwell v Barton Turns Developments Limited

Ms Treadwell brought a claim of automatic unfair dismissal, alleging that she was dismissed because she made a protected disclosure. She applied to amend her claim to include a detriment claim, seeking to rely on her dismissal as a detriment alongside other non-dismissal detriments. 

The tribunal allowed the amendment in respect of the non-dismissal detriments, describing it as a ‘genuine re-labelling exercise’, but refused the application to add her dismissal to the list of detriments. It concluded that the plain wording of the legislation requires a detriment to be something other than dismissal. However, the EAT held that it was bound to follow Osipov and allowed the appeal to add dismissal to the list of detriments. 

Barton Turns appealed to the Court of Appeal. 

The EAT reached different conclusions in each case, leaving two conflicting decisions for the Court of Appeal to consider.

Did the Court of Appeal agree with the decision reached in Osipov?

No, it didn't. The Court of Appeal stated that the legislation is clear and unambiguous: there is no basis for allowing an employee to bring a detriment claim based on their dismissal. Section 47B is entirely disapplied where the complaint concerns dismissal. 

It noted that parliament has expressly provided that protection from dismissal falls separately under Part X (automatic unfair dismissal). The Court of Appeal also rejected the argument that dismissal by a co-worker creates a separate cause of action, noting that dismissal is, by definition, an act of the employer. 

However, it concluded that it was nevertheless bound by Osipov under the doctrine of precedent. Building on Osipov, therefore, the Court of Appeal held that an employee who initially claims automatic unfair dismissal may later apply to amend that claim to include a detriment claim alleging the employer is vicariously liable for the actions of a co-worker. 

As a result, it allowed the employee's appeal in the Wicked Vision case and dismissed the employer's appeal in the Barton Turns case. However, permission to appeal has already been granted to the Supreme Court.

What does this mean for employers?

Hopefully the Supreme Court will resolve this unsatisfactory state of affairs. 

Until it does, employees may advance claims that their employer is vicariously liable for a detriment claim where a co-worker was involved in the decision to dismiss them and that is linked to the fact they have made a protected disclosure. 

The best defence to this sort of allegation is to ensure there is clear blue water between the allegations the employee has raised and the reason why you have dismissed them. If there's any hint that you dismissed them because of what they said, you'll be on the back foot from the start. 

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