EAT gives significant judgment in appeal on individual liability for whistleblowing detriment
The EAT has today given judgment in IPL & Others v Osipov EAT/0058/17/DA. The judgment is a lengthy one given the number of issues raised by the Respondents to the original ET claim but the most significant conclusion reached by the EAT is that claims can be pursued against fellow workers or agents for compensation for dismissal related detriment.
Mr Osipov was found by the ET to have been dismissed by his employer, IPL, for having made a series of protected disclosures. He was awarded compensation in the region of £1.7m. The sum was awarded not only against IPL but also against 2 non-executive directors (Mr Sage and Mr Timis) who the ET found were “workers” within section 230 Employment Rights Act 1996 (“ERA”) and who were responsible for the decision to dismiss and its implementation.
Messrs Sage & Timis did not appeal the worker status point but did appeal on the basis that any compensation for dismissal related detriment could only be pursued against IPL and not against them. The EAT roundly rejected that argument and found that claims against individuals within Part V ERA could include losses flowing from dismissal where the claimant had been subject to a relevant detriment by those individuals. Whilst dismissal related claims against the employer were placed within the run of unfair dismissal cases under Part X as a result of the operation of section 47B(2) ERA, this did not mean that individuals ceased to be liable under Part V. Simler P accepted that this produced an anomaly in that a Claimant could be awarded compensation under Part V for dismissal related losses based on detriments inflicted by fellow workers in circumstances in which a claim under Part X against the employer might not succeed given the higher “reason or principal reason” threshold test. However, this anomaly had already been recognised by the Court of Appeal in Fecitt v NHS Manchester. Based on the EAT’s judgment, Claimants should always consider bringing whistleblowing claims against individuals as well as against the employer, even where the relevant detriment amounts to dismissal.
For the full judgment, click here. To see Bayo Randle's detailed analysis of the judgment in the Devereux Blog, click here.
Bruce Carr QC appeared for the successful Claimant, Mr Osipov and was instructed by BDBF LLP.
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