Court of Appeal confirms wider whistleblowing rights

A recent Court of Appeal decision confirms that whistleblowers can, in some circumstances, bring claims not only against their employer, but also against individual managers or colleagues involved in their dismissal.

Whistleblowing claims – the basics

Whistleblowers have two main types of legal protection under the Employment Rights Act 1996:

• Automatic unfair dismissal (s103A)
  If the reason, or main reason, for dismissal is whistleblowing, a claim can made, but only against the employer.
• Detriment (s47B)
  If a whistleblower suffers detrimental treatment because they spoke up, a claim can be brought against the employer and against individual co-workers or agents. Employers can also be held vicariously liable for employee actions.

Detriment claims work for employees because the legal test is easier to meet – the treatment only needs to be materially influenced by whistleblowing – and compensation can include injury to feelings.

Why is this important?

Historically, the law suggested that employees could not bring a detriment claim where the complaint was for dismissal, because dismissal was already covered under s103A – automatic unfair dismissal. The wording in s47B(2) appears to block detriment claims based on the act of dismissal.

However, employees argued that the act of dismissal by a manager or decision-maker was itself a detriment caused by a co-worker for which the employer could also be held vicariously responsible – allowing them to bring both a detriment claim for the act of dismissal as well as an unfair dismissal claim.

What the Court of Appeal decided

In the joined cases of Rice v Wicked Vision and Barton Turns v Treadwell the Court of Appeal confirmed that:

• employees can bring a detriment claim based on the act of dismissal under s47B
• if the dismissal is treated as the act of a co-worker or agent
• and the employer is vicariously liable for that act.

The Court said it might have reached a different conclusion if not bound by an earlier case (Timis v Osipov), but their legal position currently allows these claims to proceed.

What does this mean for employers and HR?

Employees who are dismissed after whistleblowing may now:

• bring automatic unfair dismissal claims

and also

• bring detriment claims against individual decision-makers, including the employer themself on the basis of vicarious liability for the detrimental act of dismissal.

This increases potential financial and reputational risk, particularly because injury to feelings awards can apply in detriment claims. This ruling reinforces the need for careful handling of whistleblowing cases and dismissal decisions. To protect your business:

• Ensure managers understand whistleblowing protections before taking action
• Document decision-making clearly, showing genuine, non-whistleblowing reasons
• Seek advice early where whistleblowing is a factor in disciplinary or dismissal processes

Further reading

• Whistleblowing for employees: What is a whistleblower – GOV.UK
• Motive of decision maker in whistleblowing detriment claims not relevant – Hunter Law

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