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Background: The Employment Rights Act 1996 (‘ERA’) provides that both employees and workers are protected in the event they ‘blow the whistle’ (i.e. report a concern about wrongdoing in the workplace – known as a protected disclosure). In particular:
In Timis v Osipov, the Court of Appeal held that s.47B(2) ERA prevents an employee from bringing a whistleblowing detriment claim against their employer where the alleged detriment is the dismissal itself. However, the employee may still pursue such a claim against an individual co-worker involved in the dismissal.
Facts: In each of the joined cases, the employees brought automatic unfair dismissal claims for whistleblowing against their employers. They later sought to amend their claims to add detriment claims against colleagues arising from their dismissals, alleging also that the employer was vicariously liable for those colleagues’ actions.
However, the EAT reached different decisions in each case and the parties appealed to the Court of Appeal.
The cases were joined and the Court of Appeal considered whether s47B(2) was a bar to an employee bringing a whistleblowing detriment claim where the alleged detriment was their dismissal.
Court of Appeal decision
The Court of Appeal held the employees were able to bring whistleblowing detriment claims (where the alleged detriment was their dismissal) against co-workers, for which their employer could be liable under s47B(1B) ERA. The Court of Appeal also clarified that there is no need to add the dismissing co-worker to the claim in order to claim against the employer under s47B(1B) ERA.
However, the Court reached this conclusion reluctantly. It explained that, if deciding the issue afresh, it would have said detriment protection does not extend to dismissal and that dismissal should sit entirely within the dismissal regime. Despite this, it was bound by the Court’s earlier decision in Osipov and had to interpret the law in accordance with this.
Implications: Although the Court of Appeal recognised that the current legal position is unsatisfactory, it noted that only the Supreme Court or Parliament can resolve the issue.
For now, employees can still bring whistleblowing claims arising from their dismissal under both s.103A and s.47B ERA. This matters because s.47B claims carry a lower burden of proof and allow for injury-to-feelings awards. Employees are therefore likely to plead both claims in the alternative.
However, where a detriment claim alleges that the employer is vicariously liable for a co-worker’s actions, the employer can still defend the claim by showing that it took ‘all reasonable steps’ to prevent such conduct. Employers should therefore review their whistleblowing arrangements to ensure they can demonstrate compliance. Reasonable steps include:
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