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Who can be liable for dismissing a whistleblower?

View profile for Emily Yeardley
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The Court of Appeal has confirmed in the recent case of Timis v Osipov [2018] EWCA Civ 2321 that individuals can be personally liable for the unlawful dismissal of a whistleblower.

A whistleblower is an individual who discloses wrongdoing within an organisation. The individual must have a reasonable belief that the disclosure shows past, present or likely future wrongdoing which falls into one or more categories. The disclosure must be in the public interest. If an individual is subjected to a detriment or dismissed as a result of having made a protected disclosure, this will give rise to actionable employment tribunal claims.

What does the law say?

It is well-established that employers may be liable for the unlawful dismissal of a whistleblower either because of its own actions or the actions of its workers where they cannot establish a ‘reasonable steps’ defence i.e. that the employer has taken all reasonable steps to prevent the actions of its workers. However, this case marks an extension of the application of the law bringing it in line with the discrimination legislation where claimants can bring claims against their employer and the individual discriminator personally.

It has been the case since 2013 that, in addition to the employer, individuals can be personally liable for their actions in subjecting a whistleblower to a ‘detriment’. However, it has been unclear whether ‘detriment’ encompasses a dismissal. This case therefore provides welcome clarification and extends the scope of ‘detriment’ to include dismissals. This means that in addition to bringing a claim against employers for a detriment and/or dismissal, individuals will not be limited to joining co-workers in a detriment claim but not a dismissal claim.

What were the facts of this case?

In this case, Mr Osipov, CEO of International Petroleum (the ‘Employer’) was dismissed following the complaints he raised regarding corporate governance.

Mr Timis and Mr Sage (both Directors) of the Employer were involved in the decision-making in respect of Mr Osipov’s dismissal. Mr Osipov brought claims in the employment tribunal for whistleblowing detriment and dismissal against the Employer, Mr Timis and Mr Sage. The tribunal held that Mr Timis and Mr Sage had subjected Mr Osipov to detriments leading to his dismissal and awarded compensation to be paid jointly and severally between the parties. Following the Employer’s insolvency, the award fell to be paid by Mr Timis and Mr Sage.

Mr Timis and Mr Sage appealed to the Employment Appeal Tribunal (EAT) arguing that as individuals, they could not be liable for Mr Osipov’s dismissal. They argued that his dismissal should be dealt with by way of an unfair dismissal claim against the Employer only. The appeal was unsuccessful.

Following this, the Court of Appeal considered the wording of the legislation and held that if the law were to prevent an individual from bringing a claim against an individual worker based on the detriment of dismissal, this would be contrary to Parliament’s intention. Mr Timis and Mr Sage were therefore liable for the compensation awarded to Mr Osipov.

Comment

This case has therefore clarified the uncertainty which had arisen and will mean that individuals can be found liable, in addition to the employer, for the unlawful dismissal of a whistleblower where the individual brings a claim for the detriment of dismissal.

This article is not a definitive statement of the law. It is designed as a free update on the law at the time of publishing. It is not a substitute for legal advice on specific facts and circumstances. BakerLaw LLP and/or the writer accepts no liability or responsibility for reliance on this article and recommends that you seek independent legal advice on your specific circumstances prior to taking any steps.

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