Section 47B of the Employment Rights Act 1996 (Section 47B) protects workers who make whistleblowing disclosures against detriments they may suffer because of their disclosures. A detriment can be anything adverse to that worker’s interests.
It is established law that a worker who is dismissed for making a whistleblowing disclosure may claim against their employer for automatic unfair dismissal, under section 103A of the Employment Rights Act 1996. It is not possible for such an affected worker to make a separate detriment claim against their employer for their dismissal.
Employers can, however, be vicariously liable for detriments caused by their workers and authorised agents in the course of their working arrangements, under section 47B.
In the 2018 case of Timis and Sage v Osipov, the Court of Appeal held, at paragraph 91 of its judgment:
“It is open to an employee to bring a claim under section 47B (1A) 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 under section 47B (1B). All that section 47B(2) excludes is a claim against the employer in respect of its own act of dismissal.”
More recently, in 2024, the Employment Appeal Tribunal (EAT) heard Wicked Vision Ltd v Rice and, in seeking to distance itself from the Court of Appeal’s decision in Osipov, held that such a claim for vicarious liability may only be brought where (a) the employer is insolvent and (b) there is a real distinction between the dismissing officer and the company.
Even more recently, a different Judge of the EAT considered the case of Treadwell v Barton Turns Development Ltd. In this case, Miss Treadwell made a claim for automatic unfair dismissal related to her dismissal and then later wanted to add a claim of vicarious liability for detriment in the form of dismissal by the co-worker who dismissed her. The EAT considered whether to allow that amendment and in doing so considered the general position of this law after Osipov and Wicked Vision.
The EAT considered itself bound by the Court of Appeal vis a vis Osipov and distanced itself from the decision in Wicked Vision, which decision it seems will be reviewed by the Court of Appeal. Miss Treadwell, therefore, is allowed to add the vicarious liability claim to her action. In the meantime, we will keep Wicked Vision under review, and Miss Treadwell will likely do the same.
Interestingly, the EAT also considered the way Miss Treadwell had amended her claim to include those new elements. Miss Treadwell added no new facts to her claim and simply added words to the effect that it was argued the [event described below] was an act of detriment. The EAT, therefore, agreed these amendments were “…simply a re-labelling of matters which precede them in the relevant paragraphs…”. Regarding amendments to existing claims, the EAT reiterated the guidance in the case of Selkent Bus Co v Moore [1996], which is that in considering whether to grant an amendment the focus should be on: the nature of the amendment, the applicability of time limits and the manner of the application. No one factor is likely to be decisive and the balance of justice is always key.
This blog was written by Ben Lindsay, Solicitor at didlaw.
