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Whistleblowing detriment and the liability of co-workers: valuable or valueless? by Daniel Northall

The Enterprise and Regulatory Reform Act 2013 introduced a substantial amendment to s.47B Employment Rights Act 1996. The newly inserted subsections (1A) – (1E) allowed a worker to bring an action for whistleblowing detriment against a co-worker or agent of the employer directly.

These provisions were designed to bring whistleblowing protection in line with existing discrimination law, in which the individual liability of employees and agents is taken for granted.

The pre-2013 disparity between whistleblowing and discrimination protection was brought into sharp focus in the Court of Appeal’s decision of Fecitt v NHS Manchester [2012] IRLR 64. The pre-2013 whistleblowing provisions did not render unlawful the victimisation of co-workers. Therefore, employers could not be vicariously liable for their workers’ actions unless they had committed some other form of civil wrong. The 2013 amendments sought in part to reverse the effect of this decision.

It was naturally assumed that if a co-worker or agent could be found individually liable, so they could be ordered to pay compensation as individuals. Otherwise, what purpose would this new form of claim have?

That assumption was recently called into question by the EAT in Jhuti v Royal Mail Group Ltd [2016] IRLR 854.

The judgment was primarily concerned with the unlawfulness of dismissal where the decision-maker was unaware of the dismissed worker’s protected disclosures. The EAT drew a distinction with the position as it relates to discriminatory decisions, developed by the Court of Appeal in CLFIS (UK) Ltd v Reynolds [2015] IRLR 562, and found that such a dismissal could still be automatically unfair by virtue of s.103A ERA.

However, the EAT also made a striking observation on the remedies available to a claimant who wishes to claim whistleblowing detriment against a co-worker or agent. At paragraph 26 of the judgment, the EAT recited s.49(1) ERA, which states:

49. Remedies

  1. Where an employment tribunal finds a complaint under s 48 … (1A) … well-founded, the tribunal –
    1. shall make a declaration to that effect, and
    2. may make an award of compensation to be paid by the employer to the complainant in respect of the act or failure to act to which the complaint relates.

This caused the EAT to go on to note, at paragraph 27 of the judgment, that:

“…there is no provision for the payment of compensation by an employee who subjected a claimant to a detriment, in the course of the former’s employment. The only remedy available against an employee is, therefore, a declaration.”

If this were correct, the only value that a claim against a co-worker would have would be as a vehicle to securing the vicarious liability of the employer. The individual liability of the co-worker would have no value beyond a declaration.

But is this actually correct?

The EAT’s judgment made no reference to s.48(5) ERA, which was also amended by ERRA 2013. Following amendment, it now provides as follows:

(5)     In this section and section 49 any reference to the employer includes –

(b)     in the case of proceedings against a worker or agent under section 47B(1A), the worker or agent.

It must surely follow that the reference to “employer” within s.49(1)(b) ERA should be read so as to include a reference to “worker or agent” by virtue of s.48(5). Therefore, in a claim under s.47B(1A), an employment tribunal has the power to award compensation to be paid by an “employer, worker or agent”. The statutory drafting may be circuitous, but there is a clear statutory path to awarding compensation to be paid by a co-worker or agent.

Jhuti is the subject of an appeal to the Court of Appeal to be heard in 2017. It is not known whether the EAT’s view on the range of remedies available against a worker or agent is the subject of challenge. In the meantime, claimants wishing to bring a claim against a co-worker or agent for whistleblowing detriment would be well advised to argue that:

  • Paragraph 27 of Jhuti is obiter and so not binding on a tribunal. The claim being considered by the EAT was brought only against the employer. The co-worker provisions were therefore not directly in issue; and
  • Section 48(5) ERA provides a mandate for awarding compensation to be paid by a co-worker or agent.
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