Can an individual be liable for a whistleblowing dismissal, along with the employer, under detriment provisions of the Employment Rights Act?
Yes, held the Court of Appeal in Timis v Osipov.
Alexander Osipov was dismissed on the ground that he had made protected disclosures. This was on the recommendation of two directors, Mr Timis and Mr Sage. A tribunal held that he had been unfairly dismissed contrary to s103A of the Employment Rights Act. But the employer became insolvent. Could Osipov go against the directors personally?
The tribunal held that, by their conduct in relation to his dismissal, the directors had subjected him to a detriment contrary to section 47B(1A) of the ERA. That section prohibits whistleblower detriment by workers working for the same employer, as well as by the employer itself. Accordingly the directors were jointly and severally liable, along with with the employer, to compensate him for the losses suffered as result of his dismissal. This was upheld by the EAT.
The Court of Appeal upheld the EAT's decision. Timis and Sage were liable for a detriment under s47B(1A) and for the losses flowing from the dismissal they had recommended.
Section 47B(2) provides that there is no claim for detriment where it amounts to dismissal itself under Part X (Unfair Dismissal) of the ERA. But this does not relieve a fellow worker or agent of liability for a detriment resulting in a dismissal. Of course this has the consequence that the employer is vicariously liable for that under sub-section 47(1B), thus outflanking the exclusion in s47B(2).
Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary.