Why the case matters
An employee dismissed for whistleblowing may potentially bring two types of claim under the Employment Rights Act 1996 (the ERA):
- a claim of automatic unfair dismissal under section 103A
- a claim of detriment under section 47B.
Bringing both claims can offer significant advantages to employees. An automatic unfair dismissal claim allows an application for interim relief which, if successful, would require employment to continue until the case is finally determined, as well as the employee's ability to request reinstatement or re-engagement. None of these remedies are available in a claim for detriment.
A detriment claim has the distinct advantage of a lower burden of proof. It would only require the whistleblowing to have more than a trivial influence on the decision to dismiss, as opposed to it being the main reason for dismissal, as required for automatic unfair dismissal. In addition, a detriment claim will give rise to an injury to feelings award which is not available for unfair dismissal.
And overall, having to defend multiple claims means more detailed legal argument and analysis, increasing complexity and legal costs.
Background
It had been thought that claims of automatic unfair dismissal and detriment were mutually exclusive. The ERA seemed unambiguous on this point, providing that employees cannot bring a detriment claim where "the detriment in question amounts to dismissal" (section 47B(2)).
However, in the 2018 case of Timis v Osipov, the Court of Appeal determined that an employee could bring a claim against their co-workers for the detriment of dismissal. The court justified its approach on the basis that section 47B(2) only excludes claims against the employer for its own act of dismissal, and that a detriment claim was appropriate because the purpose of the whistleblowing legislation is to protect whistleblowers.
In the recent case of Henderson v GCRM Limited, the EAT considered whether a dismissing manager can be personally liable for the detriment of dismissal.
Facts
Two cases, Rice v Wicked Vision Limited and Barton Turns Developments Limited v Treadwell, recently reached the Court of Appeal. In both of them, the dismissed employee brought claims of automatic unfair dismissal and then sought to add a detriment claim of dismissal against a co-worker, for which they argued that their employer should be vicariously liable.
The Employment Tribunals that heard each case reached the opposite conclusion from the other, as did the two Employment Appeal Tribunals. Clearly there is a lot of uncertainty about whether such dual claims are permitted.
Decision
The Court of Appeal has ruled that employees can bring both unfair dismissal claims and detriment claims based on the same dismissal, and can do so without even naming the individual co-worker as a defendant. It reached this conclusion because it felt bound by the earlier Osipov decision, as legal precedent for the ambit of section 47B(2) ERA.
The court was, however, uncomfortable with this outcome, stating that if they were free to decide the matter afresh, they would rule that section 47B(2) always prevents detriment claims based on dismissal. They contended that as a co-worker can never dismiss in their own name, a dismissal can only ever be an act of the employer. According to the court, the meaning of section 47B(2) is clear.
The court also made the point that conflicting decisions at Employment Tribunal, Employment Appeal Tribunal and Court of Appeal level was "plainly unsatisfactory", and we agree. But this unsatisfactory outcome can only be resolved by the Supreme Court (or legislative amendment, although we suggest that there is only a small chance that the government resolves this issue soon).
Comment
The Court of Appeal gave a strong indication that the case should be decided by the Supreme Court, which could overturn the current position that seemingly allows for dual claims. In the meantime, we expect that well-advised employees who are dismissed will always bring claims both of automatic unfair dismissal and detriment.
When handling dismissals involving employees who have raised concerns, ensure that robust procedures are followed, and thoroughly document all decisions. There is a "reasonable steps" defence to detriment claims involving vicarious liability, which will apply if the employer can demonstrate that it took all reasonable steps to prevent the detriment. So we suggest that a suitable whistleblowing policy is put in place, which is drawn to the attention of all staff, who all receive training on the procedures available.
