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The Court of Appeal has ruled that employees who claim they were unfairly dismissed for making protected disclosures may also bring a whistleblowing detriment claim where the alleged detriment is the dismissal itself. The decision, given reluctantly by the Court in (Rice v Wicked Vision Ltd), exposes continuing uncertainty in the statutory framework and highlights the need for legislative clarification.
Background to the Case
Two employees brought claims for automatic unfair dismissal under Section 103A of the Employment Rights Act 1996, alleging that the reason or principal reason for their dismissals was that they had made protected disclosures.
They also sought to amend their claims to include complaints under Section 47B, which prohibits workers from being subjected to a detriment because they have made protected disclosures. Crucially, the alleged detriment included the dismissal itself.
However, Section 47B(2) provides that Section 47B does not apply where the worker is an employee and the detriment complained of amounts to dismissal.
Employment Tribunals reached differing conclusions on whether such amendments were permissible. Both decisions were appealed and overturned by the Employment Appeal Tribunal, leading to further appeals to the Court of Appeal.
Conflicting Authorities and the Osipov Decision
The issue had previously been considered in Timis v Osipov, where the Court of Appeal held that:
- an employee could bring a detriment claim against a co-worker under Section 47B(1A) for being involved in a dismissal decision; and
- the employer could be held vicariously liable under Section 47B(1B).
On that analysis, Section 47B(2) merely excluded claims against the employer for its own act of dismissal, but did not prevent claims framed via co-worker involvement.
Court of Appeal’s Reluctant Conclusion
In the present case, the Court of Appeal expressly disagreed with the reasoning in Osipov, finding that:
- Section 47B(2) is unambiguous;
- Parliament clearly intended that where the detriment amounts to dismissal, an employee cannot bring a Section 47B claim; and
- a dismissal is, by definition, always an act of the employer—not a co-worker.
The Court rejected the notion that an employee could be dismissed by a co-worker, noting that Section 47B(1B) treats acts of co-workers as acts of the employer.
However, the Court found itself bound by the earlier decision in Osipov. It concluded that if Section 47B(2) did not bar claims relying on Section 47B(1A), it could not logically bar reliance on Section 47B(1B). As a result, despite its own interpretation of the legislation, the Court held that the employees were entitled to amend their claims.
The Court described the outcome as “plainly unsatisfactory”, observing that the issue has now produced conflicting decisions across three judicial levels. It concluded that resolution can only come from Parliament or the Supreme Court.
Q&A: Whistleblowing, Dismissal and Detriment Claims
What is automatic unfair dismissal under Section 103A?
It applies where the reason or principal reason for dismissal is that the employee made a protected disclosure.
What is a whistleblowing detriment claim?
A claim under Section 47B where a worker suffers a detriment for making a protected disclosure, such as being denied promotion or subjected to disciplinary action.
Can dismissal itself amount to a detriment?
Following this decision, yes - at least for now - employees may bring detriment claims where the alleged detriment is dismissal.
Why is the law unclear?
The wording of Section 47B(2) appears to exclude such claims, but existing Court of Appeal authority has interpreted it differently.
What does this mean for employers?
Employers face increased litigation risk in whistleblowing cases and may have to defend both unfair dismissal and detriment claims arising from the same dismissal.
Contact Us
Whistleblowing claims present complex legal and reputational risks for employers and employees alike. Our Employment Law solicitors advise on protected disclosures, detriment and unfair dismissal claims, and Employment Tribunal litigation.
If you require advice on managing whistleblowing issues or defending employment claims, contact Willett & Co Solicitors today for expert, practical guidance.