Who is liable for whistleblowing?
Can co-workers be liable for whistleblowing dismissals along with the employer?
Yes, the Court of Appeal has said in Timis v Osipov. Mr Osipov was the employer's CEO. Two directors decided to dismiss him after he made protected disclosures. The employee brought claims against the company for whistleblower dismissal under section 103A of the Employment Rights Act 1996. He also brought claims against the directors (as well as the employer) under section 47B of the same Act for detriments which led to his dismissal.
Mr Osipov won his unfair dismissal claim against the employer (only an employer can be responsible for an unfair dismissal claim). He also won claims for detriment against both the employer and the directors. Together with the employer, the directors were jointly responsible for the losses flowing from the dismissal because it was caused by their detriments. The company became insolvent. Could the employee claim all the compensation from the directors, which amounted to approximately £2million?
The Court of Appeal said yes. The directors tried to use an exclusion contained in s47B(2), which excludes detriment claims that amount to unfair dismissal. The Court confirmed that a whistleblowing unfair dismissal claim should be brought under section 103 and not section 47B. But claims for detriment involving dismissal can still be brought against a co-worker under section 47B. If dismissal – the most serious of possible detriments – were excluded from the possible claims brought against a co-worker, it would make a mockery of the protection. It would create the situation where individuals would be better off dismissing a whistleblower than subjecting them to lesser detriments, to escape personal liability.
This case is concerning for employers, especially managers. Detriment claims against individuals relating to dismissals are rare. However, in small businesses or those with limited financial means, co-workers may be more vulnerable to claims. Employers should ensure systems are in place to manage protected disclosures properly and fairly.