Whistleblowing: when is a dismissal not a detriment?

An EAT decision in Wicked Vision Ltd v Rice  provided further clarity on the different ways in which whistleblowing claims can be made and against whom they can be made.

The basic principles are:

• An act of whistleblowing is a “protected disclosure”
• An employee can claim automatic unfair dismissal if the reason, or principal reason, for dismissal is that they made a protected disclosure
• An employee has the right not to be subjected to any detriment done on the ground that they have made a protected disclosure
• Where an employee is subject to a detriment by a colleague, the employer will be vicariously liable for the detriment
• A detriment does not include a dismissal

The generally understood position has therefore been that the employee cannot bring a dismissal claim as a “detriment” claim. If you could, there would be strategic reasons for doing so as the threshold for proving that a detriment relates to whistleblowing (“done on the ground that”) is lower than the threshold for proving that a dismissal relates to whistleblowing (“the reason or principal reason”).

A Court of Appeal decision in Timis v Osipov found that there was some nuance to this position. In that case, the employee successfully claimed that the two non-executive directors who dismissed him were personally liable for his dismissal because it was a “detriment”. The Court of Appeal found that the provision stating that a dismissal could not be a detriment, meant than a claim for dismissal could not be brought against the employer itself as a detriment claim, but did not prevent a claim against a colleague being made for a dismissal as a detirment. It was important to the claimant in this case as the employer was insolvent and the employee therefore needed to pursue the individual directors in order to obtain any compensation.

In the EAT’s recent decision in Wicked Vision Ltd v Rice, the EAT limited the scope of the Timis v Osipov decision.  

Mr Rice worked for Wicked Vision Limited which is owned by Mr Strang. Mr Rice was made redundant but claimed that the real reason for his dismissal was that he had made protected disclosures about alleged breaches of the furlough scheme. He brought a claim for automatic unfair dismissal against the employer and then sought to amend the claim to include a claim that he had been subject to a detriment by Mr Strang and that detriment was dismissal. Using the rationale in Timis v Osipov, Mr Rice argued that he could bring a detriment claim against Mr Strang for his dismissal and that his employer would be vicariously liable for the acts of Mr Strang. If successful, this claim would have effectively made the company liable for Mr Rice’s dismissal, but using the threshold of a detriment claim, rather than a dismissal claim.

The EAT found the Mr Rice could not bring such a claim against Mr Strang. They found that as Mr Strang was the owner of the business, his acts were the acts of the company. In the Timis v Osipov case, the non-executive directors were not the owners of the business. The EAT found that the Timis v Osipov scenario only applied where the Claimant could not bring a dismissal-related claim against the individual respondents as an automatic unfair dismissal claim. In the case of Mr Rice, he could bring an automatic unfair dismissal claim as Mr Strang’s acts were the Company’s acts because he was the owner. If he could bring an automatic unfair dismissal claim, then he could not also bring what was essentially the same claim as a detriment claim.  

Whilst dealing with technical points, this case is a good illustration of:

• The nuanced distinction between the thresholds for proving whistleblowing dismissal and detriment;
• The increased frequency with which (as we see in many discrimination claims), claimants in whistleblowing claims seek to include individual employees as respondents in their claims