Whistleblowing detriment vs. dismissal: The Court of Appeal gives its verdict

In the joined cases of Rice v Wicked Vision Ltd and Barton Turns Developments Ltd v Treadwell [2025] EWCA Civ 1466, the Court of Appeal has reviewed the scope of whistleblowing detriment claims, in particular, whether an employee who brings an automatic unfair dismissal whistleblowing claim can also bring a whistleblowing detriment claim, where the alleged detriment is their dismissal. 

Whistleblowing: Existing legal framework

The Employment Rights Act 1996 (“ERA”) provides that both employees and workers are protected in the event they ‘blow the whistle’ (i.e. report a concern about wrongdoing in the workplace). Specifically: 

• employees: are protected from dismissal where the reason or principal reason for their dismissal is that they have made a ‘protected disclosure’ (i.e. ‘blow the whistle’). Section 103A ERA provides that such a dismissal is automatically unfair.
• employees and workers: are protected from detriment (i.e. less favourable treatment) on the ground that they have made a protected disclosure. Section 47B(1A) ERA permits employees and workers to bring whistleblowing detriment claims against co-workers, with employers able to be held vicariously liable for its workers’ actions under s47B(1B) ERA. 

It is unclear whether the intention of the legal framework was to allow employees to bring whistleblowing claims in relation to their dismissal under both s103A and s47B ERA. Section 47B(2) ERA attempts to address this issue, by excluding detriment claims where the "detriment itself amounts to dismissal".    

However, in Timis v Osipov [2018] EWCA Civ 2321, the Court of Appeal found that: 

(i) an employee was able to bring a whistleblowing detriment claim against a co-worker where the detriment relied on was their dismissal; and 

(ii) the employer could be liable for the dismissal under s47B(1B) ERA, with this liability NOT excluded by s47B(2) ERA. The Court of Appeal held that all s47B(2) ERA excluded was an employee bringing a whistleblowing detriment claim (where the detriment relied on was their dismissal) directly against their employer. 

Wicked Vision and Barton Turns: Brief facts 

The claimant employees in both Wicked Vision and Barton Turns brought automatic unfair dismissal whistleblowing claims against their employers, and applied to amend their claims to add detriment claims against co-workers based on their dismissals (for which it was alleged the employer was vicariously liable). The ET and EAT reached contrasting decisions in both cases: 

• in Wicked Vision, the ET permitted the amendment, but the EAT overturned this decision, finding that s47B(2) ERA barred such a claim; and
• in Bartons Turns, the ET refused the amendment, but the EAT overturned this decision, allowing the claimant to bring a whistleblowing detriment claim, based on the decision in Osipov. 

The relevant parties appealed the EAT’s decisions. The cases were joined and heard by the Court of Appeal, who considered: whether s47B(2) was a bar to an employee bringing a whistleblowing detriment claim where the alleged detriment was their dismissal, the decision in Osipov, and whether this decision was binding. 

Decision of the Court of Appeal 

On review of the decision in Osipov, the Court of Appeal found that it “respectfully disagree[d] with its interpretation of the legislation”. In particular, the Court of Appeal found that s47B(2) ERA was 'not ambiguous', and acted as a bar to an employee making a whistleblowing detriment claim where the detriment complained of ‘amounts’ to the employee’s dismissal by their employer. 

However, despite this, the Court of Appeal found that it was nonetheless bound by the decision, and Osipov’s interpretation of the effect of s47B(2) ERA.

Consequently, the Court of Appeal held the employees in Wicked Vision and Barton Turns were able to bring whistleblowing detriment claims (where the alleged detriment was their dismissal) against co-workers, for which their employer could be liable under s47B(1B) ERA. The Court of Appeal also clarified that there is no need to add the dismissing co-worker to the claim in order to claim against the employer under s47B(1B) ERA. 

Key points for employers

Although the Court of Appeal concluded that the current position is “plainly unsatisfactory”, it can only be resolved by the Supreme Court or amendment of the legislation by Parliament.

Therefore, at least for now, employees can bring whistleblowing claims in relation to their dismissal under both s103A and s47B ERA. This is important, as claims brought under s.47B ERA benefit from a less onerous burden of proof and injury to feelings awards are available. Claimants are therefore likely to bring both claims in the alternative. 

However, in detriment claims (where it is alleged that the employer is vicariously liable for the acts of a co-worker), the employer has a defence if it can show that it took “all reasonable steps” to prevent the co-worker from behaving in that way. Accordingly, it would be prudent for employers to audit their current whistleblowing policies and practices, so that in the event of a challenge, it can demonstrate that it has taken “all reasonable steps” to prevent the behaviour from occurring. This includes:

• Having an effective whistleblowing policy that is regularly reviewed.
• Clearly communicating in the policy that victimisation of whistleblowers will not be tolerated and will lead to disciplinary action.
• Training the workforce on the policy and the consequences of non-compliance.
• Ensuring that whistleblowing complaints are promptly and robustly investigated and appropriate action taken.