In Rice v Wicked Vision Ltd / Barton Turns v Treadwell (Protect intervening), the Court of Appeal has confirmed that employees may bring whistleblowing detriment claims under ss.47B(1A) and 47B(1B) ERA 1996 where the detriment is the act of dismissal for which the employer is vicariously liable.
This judgment overturns the Employment Appeal Tribunal’s decision in Wicked Vision, which had held that such “detriment dismissal” claims could not be brought against employers where an unfair dismissal claim under s.103A ERA 1996 was available. Both the EAT and the Court of Appeal considered themselves bound by the earlier Court of Appeal authority in Timis and Anor v Osipov (Protect intervening).
Had the EAT’s interpretation in Wicked Vision remained in force, employees would have lost access to important protections including the lower causation threshold under Part V and the ability to recover injury to feelings and other non pecuniary losses arising from the dismissal. The Court of Appeal’s decision therefore preserves a key aspect of whistleblowing protection that had been secured in Osipov.
However, the Court of Appeal was explicit that it disagreed with the statutory interpretation adopted in Osipov. In its view, s.47B(2) ERA 1996 clearly indicates that where a detriment “amounts to dismissal (within the meaning of Part X)” a claim under Part V is excluded. The Court observed that the differences in causation and remedies between Part V and Part X indicate that Parliament intended two distinct remedial regimes.
Accordingly, had it not been bound by Osipov, the Court of Appeal in Rice / Barton Turns would have held that dismissal related detriment claims cannot be brought against either co workers or employers via vicarious liability. Only the Supreme Court or new legislation can definitively resolve this tension. Given the conflicting interpretations now present in two Court of Appeal decisions, a further appeal is likely.
Adam Solomon KC, leading Chris Milsom (Cloisters) and Tamsin Sandiford (St Philips Barristers), acted for Ian Rice. They were instructed by The Wilkes Partnership LLP.
View a copy of the judgment here.
