In the recent matter of Timis & Sage v Osipov & Another, available here, the Court of Appeal has upheld an EAT ruling that individual workers can be liable in whistleblowing dismissal claims.
The legislation on this issue treats detriment and dismissal differently. Since 2013 whistleblowers who have been treated detrimentally but not dismissed have had the right to bring claims directly against co-workers when they feel that they have been badly treated or suffered hurt feelings. However, up to now it has appeared that co-workers were immune from claims if the detrimental treatment went as far as dismissal. The recent ruling has changed that.
Mr Osipov was the CEO of International Petroleum Ltd (IPL), an oil and gas exploration company, who discovered serious wrongdoing by senior employees within days of joining the company. He made protected disclosures about corporate governance and compliance with local law and was subsequently dismissed by two of IPL’s non-executive directors, Mr Timis (the largest individual shareholder) and Mr Sage (the Chairman).
Mr Osipov brought a tribunal claim for automatic unfair dismissal and detrimental treatment as a result of his whistleblowing. The tribunal upheld the claim and ordered all three of the parties held jointly and severally liable to pay compensation for injury to feelings. IPL became insolvent, so Mr Osipov sought to enforce the judgment against Mr Timis and Mr Sage who appealed to the EAT disputing liability on a number of grounds, principally that they were protected by the whistleblowing legislation as this particular detriment had amounted to dismissal. They argued that where whistleblowing is concerned unfair dismissal claims can only be brought against an employer and not named individuals (as with all unfair dismissal claims).
The EAT rejected this, upholding the original tribunal’s finding that the non-executive directors were jointly and severally liable for nearly £1.8 million, so Mr Timis and Mr Sage took their case to the Court of Appeal for a ruling. The Court of Appeal upheld the decisions of the original tribunal and the EAT, ruling that it could see no reason why co-worker liability for detriment should not include dismissal.
This has been an unusual case not just because individuals have been held liable in a detriment claim for dismissal, but because there is no solvent employer to pursue for compensation. The ruling may now encourage pursuit of dismissal related claims against both employers and dismissing managers. Since detriment claims include the possibility of claiming additional compensation for injury to feelings, and since there is no statutory cap on such compensation, employers no need to be more vigilant than ever to guard against whistleblowing detriment.
Have a question? Contact Alison via email for more information.
