Cloisters’ barristers successfully preserve the right to bring whistleblowing “detriment of dismissal” claims.

Image of Chris Milsom, Schona Jolly KC and Dee Masters

Schona Jolly KC and Dee Masters acted for Protect as intervener. Chris Milsom acted as junior counsel for the Claimant in Rice. 

In Rice v Wicked Vision Ltd/Barton Turns v Treadwell (Protect intervening,) the Court of Appeal has held that two employees could bring claims of whistleblowing detriment under ss47B(1A) and 47B(1B) where the detriment was the act of dismissal for which the employer was vicariously liable. The CA thus overturned the decision of the EAT in Wicked Vision that a “whistleblowing detriment of dismissal” claim could not be brought against the employer where such a claim could be brought as one of unfair dismissal under s103A ERA 1996. The EAT and the CA itself were each bound by the prior decision of the CA in Timis and anor v Osipov (Protect intervening).

It is unlikely, however, that this will be the end of the story. The CA in Rice/Barton Turns made it clear that it disagreed with the interpretation of the statute in Osipov; on its assessment s47B(2) ERA 1996 unambiguously signalled that where the detriment ‘amounts to dismissal (within the meaning of Part X)’, employees cannot make a claim under Part V. The differences between Part X and Part V, in terms of causation and remedy, showed that Parliament had created two distinct remedial regimes. Had it not considered itself bound by Osipov therefore, the CA in Rice/Barton Turns would have excluded the ability to bring detriment of dismissal claims against both co-workers and their employers by dint of vicarious liability. The Court held that it was plainly unsatisfactory that the construction of this legislation has now produced conflicting decisions at three levels of court, but that can only be resolved by the Supreme Court or by amendment to the legislation.

The link to the judgment can be found here.