News Updates

Individual liability in whistleblowing cases

Tuesday 30th October 2018

In Timis & anor v Osipov the CA has held that an individual can be liable for losses flowing from a dismissal in whistleblowing cases.

Mr Osipov made a number of protected disclosures, following which he was dismissed. He successfully brought a claim before the ET for automatic unfair dismissal. Mr Osipov also succeeded in his claims brought against, Mr Timis and Mr Sage, alleging detriment and dismissal on the ground that he made protected disclosures. The ET found his employer and co-workers jointly and severally liable for losses flowing from Mr Osipov’s dismissal in the amount of £1,744,575.56. Mr Timis and Mr Sage appealed.

The appeal focused on the correct application of section 47B of the ERA 1996. Section 47B(1A) allows workers to bring claims against individual co-workers where they have been subjected to a detriment by act or deliberate omission as a result of having made a protected disclosure. Section 47B(1B) provides that an employer is vicariously liable for such actions.   However, section 47B(2) stipulates that these sections do not apply where the worker is an employee and the detriment is a dismissal falling within section 103A (automatic unfair dismissal). Mr Timis and Mr Sage argued this provision prevented them from being liable, as the claim for unfair dismissal could only be brought against an employer.

The EAT held that section 47B(1A) had created “a framework for individual liability……without restriction” and the exclusion was limited only to detriments which amount to unfair dismissal claims which must necessarily be brought against the employer.

The CA agreed, holding that construing the exclusion as preventing a claim against a co-worker based on the detriment of dismissal would produce an incoherent result. The CA believed Parliament’s intention was to exclude liability only where the identical remedy was available elsewhere under section 103A (automatic unfair dismissal) and therefore it would not exclude a co-worker’s individual liability for the detriment of dismissal or the employer’s vicarious liability.

The CA also confirmed that section 47B(2) does not prevent an employee claiming losses which result from dismissal in situations where there is a detriment distinct from dismissal, but which ultimately causes the dismissal, subject to the rules of remoteness and taking contingencies into account, for example that employment might have terminated regardless.

All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.