By Jo Seery Professional Support Lawyer
Background
Ian Rice was employed by Wicked Vision Limited as Head of UK Sales until his dismissal in February 2021, allegedly for redundancy. Rice contended that his dismissal was due to protected disclosures he had made, amounting to whistleblowing. He brought a claim against his employer under section 103A of the Employment Rights Act 1996 for automatic unfair dismissal. He later sought to amend his claim to add a claim that he had been subject to a detriment under section 47B, by a co-worker (the company owner, Mr Strang),who he alleged was responsible for his dismissal and for which the employer was vicariously liable.
The case turned on whether the Employment Tribunal could allow such an amendment given the exclusion in section 47B(2), which states that the detriment provisions do not apply if the detriment “amounts to dismissal”.
Key Issues
Interaction Between Dismissal and Detriment Claims
The central question was whether an employee could bring a claim under section 47B(1A) (detriment by a co-worker) when the alleged detriment is the dismissal itself. The earlier Court of Appeal case of Osipov v Timis had established that employees can bring a claim for dismissal against co-workers for which the employer was vicariously liable. In that case the Court held that s. 47(B)(2) was not a bar to a claim by an employee for unfair dismissal against their employer and a simultaneous detriment claim against a co-worker also based on his dismissal. All s. 47(B)2 excluded was a claim against the employer’s act of dismissal.
Interpretation of Section 47B(2)
The Court considered whether section 47B(2) prevents detriment claims where the act in question “amounts to dismissal.” The Court disagreed with the Court of Appeal in Osipov. It considered that S. 47(B) 2 was clear that where the detriment amounts to a dismissal under Part X (dismissal) of the Employment Rights Act 1996 then employees cannot also bring a claim for dismissal under Part V (the detriment provisions). It took the view that these were two different remedial regimes with different tests for causation and remedy. The Court also considered that s 47B(1B), which provides that an act done by an employee is also treated as being done by the employer. As such a dismissal by a co-worker amounts to a dismissal by the employer.
Outcome
Despite disagreeing with the analysis in Osipov, the Court of Appeal held it was bound by precedent to follow it and therefore allowed Ian Rice’s appeal. It concluded that the construction of the legislation was unsatisfactory but could only be resolved by either the Supreme Court or by an amendment to the legislation by Parliament.
Why This Matters
This judgment confirms that an employee can claim automatically unfair dismissal against their employer for whistleblowing and at the same time claim for a detriment for a dismissal carried out by a co-worker. It also makes clear that an employee can bring a claim for dismissal by a co-worker against their employer without having to bring the claim against the co-worker on the basis that the employer is vicariously liable for the acts of the co-worker. The case highlights the tension between legislative drafting and judicial interpretation, which can only be resolved by either the Supreme Court or Parliament. It is not known at this stage whether there will be a further appeal in this case.
