UK employment law provides two key protections for staff who make protected disclosures: protection against dismissal (dismissal for making a protected disclosure being automatically unfair) and protection against being subjected to a detriment for making a protected disclosure. Over a decade ago, this protection was broadened so that employees and workers could bring claims against individual colleagues, as well as their employer, if those colleagues had subjected them to a detriment for making a protected disclosure - and the employer would usually be liable for those claims too, under the principle of vicarious liability. With awards for whistleblowing claims uncapped, the liability can be eye-watering.
A few years ago, the case of Osipov v Timis established that, where the individual colleague's detrimental actions amounted to a dismissal of the whistleblower, the claimant could still bring a detriment claim against that individual, rather than being limited to an automatic unfair dismissal claim against their employer. That was hugely significant in that particular case, where the employer was insolvent and so the only way the claimant could secure compensation was by pursuing a claim against the two directors who had fired him. They were found personally liable to the tune of around £2 million.
Since then, whistleblowing claimants typically bring three claims simultaneously: a claim for unfair dismissal against their former employer, a detriment claim against the individual decision-maker who dismissed them and an additional claim against the employer as vicariously liable for the detriment (i.e. dismissal) carried out by its employee/worker. An employer can avoid vicarious liability if it can show that it had taken all reasonably practicable steps to prevent such detriments, but this defence can be hard to make out.
Last year, the Employment Appeal Tribunal seemed to cast doubt on this approach. In Wicked Vision v Rice, it suggested that an employer will not be vicariously liable for detriments which amount to dismissal - the claimant can only bring an automatic unfair dismissal claim against the employer.
This decision caused consternation among employment lawyers, as it seemed to undermine previous case law. An appeal will be heard by the Court of Appeal this year, with Protect (the whistleblowing charity) intervening in an effort to clarify the law. Although the legal position is complex, the practical implications will be significant, whatever the outcome. With many businesses facing an ever-increasing compliance burden, it's common to face complaints by staff that a legal or regulatory obligation has been breached, and dissatisfaction with the outcome can often lead to whistleblowing claims. The cost (and reputational risk) associated with such claims is significant. If the appeal goes in the employee's favour, it will confirm another weapon in the armoury of whistleblowing claimants.
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