Court of Appeal gives judgment this week in two significant appeals on whistleblowing and territoriality

Two significant judgments have been handed down this week by the Court of Appeal on employment rights’ issues.

In Green v SIG [2018] EWCA Civ 2253 (heard together with the linked case of British Council v Jeffery, the Court considered claims under section 47B and 103A Employment Rights Act brought by an employee of SIG based in Saudi Arabia. He claimed that he had been subjected to a series of detriments and was ultimately dismissed due to concerns that he had raised about the conduct of his employer’s business. His claims were dismissed in the Employment Tribunal on the basis that his employment did not have sufficient connection with Great Britain to displace the territorial effect of being located in Saudi Arabia. In the Court of Appeal, he attempted to argue that a different jurisdictional test should be applied to an individual exercising rights of freedom of expression under Article 10 ECHR. The argument was that Article 10 operated ‘regardless of frontiers’ so that a person blowing the whistle when located abroad could nevertheless bring claims under the ERA if the relevant decisions said to amount to a detriment had been taken in the UK. The Court of Appeal, upholding an earlier decision of the EAT in Smania v Standard Chartered Bank [2015] ICR 436, that Article 10 did not allow for any difference in the approach taken to jurisdiction based on the decision in Lawson v Serco  and those decisions which had followed it. Reliance on Convention rights could only be brought within scope if the relevant party was within the jurisdiction of the contracting state in accordance with Article 1 – Mr Green was never within the UK jurisdiction when exercising his Article 10 rights (if indeed that was what he had done)

Bruce Carr QC appeared for the successful Respondent, SIG.

A link to the judgment can be found here.

 

In (1) Timis (2) Sage v Osipov [2018] EWCA Civ 2321, the Court of Appeal handed down a landmark judgment in which it held that pursuant to the amendments made to section 47B ERA in 2013, individuals can be held liable to dismissal related detriments which they inflict on whistleblowers. Messrs Sage and Timis were found to have been directly responsible for the dismissal of Mr Osipov from his employer, International Petroleum Company Limited (IPL) and that the reason for their actions was because he had made protected disclosures. They sought to argue that the effect of section 47B(2) of the ERA was that claims which were based on detriments amounting to dismissal could only be brought against the employer, IPL and only under Part X ERA – in the case of a whistleblowing dismissal using section 103A. They argued that to allow claims to be brought against individuals under Part V (relying on section 47B) would have the effect of undermining the legislative structure of the ERA as a claim under Part V operates at a lower threshold of liability (“on the ground that”) than claims under Part X (“reason or principal reason”). Those arguments were rejected by the CA principally on the basis that such a construction would result in extreme anomalies which could not have been reflected the intention of Parliament. In particular, it would mean that:

• “workers” under section 230(3)(b) would be in a better position than those employed as employees under a contract of employment as such workers can in all circumstances bring dismissal related claims against individual co-workers;
• decision makers in whistleblowing cases, would find themselves free of liability if they adopted the ultimate sanction of dismissal but within the scope of a Part V claim if they adopted a lesser sanction. This in turn would mean that the changes under which individual liability was created put whistleblowers in greater peril of dismissal than had been the case prior to the 2013 amendments to the ERA;
• in a ‘tainted information’ case, an individual would remain liable for dismissal related losses in all cases where the acts of the person responsible for bringing about the dismissal could not be regarded as being the employer’s ‘reason for dismissal’ within section 103A ERA;
• individual liability in dismissal-related detriment claims was removed entirely in the case of discrimination against whistleblowers but remained in place under the Equality Act 2010 where dismissal was on the ground of some other protected characteristic.

The Court also accepted that claims under Part V are different in many respects to those under Part X. In particular, the ‘reasonable steps’ defence open to employers under Part V does not appear in Part X. Furthermore, the remedies in a Part x claim are much wider than those under Part V as they include reinstatement, re-engagement and the possibility of interim relief claims. The outcome has significant implications for the way in which whistleblowing litigation is conducted in future and should also serve as a strong incentive on employers to take steps to ensure that their staff are properly trained so as to minimise the risk of whistleblowing detriment occurring whilst at the same time, laying the ground for a ‘reasonable steps’ defence in the event that dismissal in fact occurs.

Bruce Carr QC appeared for the successful Respondent, Mr Osipov.

A link to the judgment can be found here.

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