Whistleblowing claims against individuals

In Treadwell v Barton Turns Development Ltd, the Court of Appeal confirmed the position and reminded us of the scope for dismissed individuals to bring whistleblowing detriment claims against the person who dismissed them.

The Claimant had been dismissed after 6 months service and brought a claim against her employer alleging that the dismissal was automatically unfair as it related to a protected disclosure she had made.

After bringing the claim, she sought to amend it to include a claim that she had been subject to a detriment by the director who had dismissed her, the detriment being her dismissal. The claim would mean that the director would be an individual respondent as well as the employer.

This was a similar issue to that which arose in Timis and Sage v Osipov. In that case, the Court of Appeal had been required to decide whether a claim for detriment could be made against a director who dismissed a whistleblowing employee. The claimant had sought in Osipov to bring a claim against the dismissing director because the employer was by that time insolvent so any remedy against the employer was worthless. One of the director’s main arguments against being named as a respondent was that the legislation states that an individual cannot claim that a dismissal is a detriment (otherwise it would effectively be the same claim being made twice).

The Court of Appeal clarified that whilst it was correct that a claim that the dismissal was a detriment could not be made against the employer, in relation to the dismissing director, then a claim could be made against them for detriment (because an unfair dismissal claim cannot be made against an individual director).

A similar issue has arisen in an EAT decision in Wicked Vision Ltd v Rice, and the EAT had distinguished the Osipov case, stating that the circumstances were different in that in Wicked Vision the employer was not insolvent (so a meaningful unfair dismissal claim could proceed against the employer) and there was no real distinction between the employer and the dismissing officer.

In the case of Treadwell, the Court of Appeal reinforced the Osipov decision and permitted the Claimant to amend her claim to include a claim that by dismissing her, the dismissing officer had subjected her to an unlawful detriment due to her protected disclosure, effectively overruling the EAT’s decision in Wicked Vision.

This case is a reminder that in both discrimination and whistleblowing claims, individual decision-makers can be named as respondents in Tribunal proceedings, which means that they can have a finding made and compensation awarded against them individually.