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personal liability for whistleblowing unfair dismissal claims

23 October 2018

It is well understood that employers may be liable for whistleblowing related dismissals. Since 2013 individual workers have also been at risk of personal liability for their own actions, where those actions are taken in response to a protected disclosure by a co-worker, which causes their co-workers to suffer some form of detriment other than dismissal.

However, in the recent case of Timis V Osipov the Court of Appeal clarified that in relation to individuals a ‘detriment’ includes dismissals which in turn potentially places those individuals indirectly at risk of personal liability for losses sustained as a result of the dismissal.

In this particular case Mr Timis was one of the directors who recommended that Mr Osipov be summarily dismissed, because he had made a protected disclosure. The Court of Appeal here made a distinction between the dismissal itself and the ‘recommendation for dismissal’, which was itself a detriment directly leading to the unfair dismissal of Mr Osipov. As a result, Mr Timis was held to be liable for the loss of earnings sustained by Mr Osipov as a result of his recommendation (which exceeded £2m). The Court of Appeal was keen to point out that the extent of the personal liability of individuals for their actions, which cause co-workers to suffer a detriment, is not limited to actions short of dismissal.

This case places individuals involved in the dismissal process of other employees (e.g. acting as a witness, chairing the disciplinary hearing or, acting as investigating officer) at greater risk of personal liability. There is a statutory defence for individuals where their actions have been carried out in reliance on a statement by their employer that their actions shall not be in breach of the Employment Rights Act 1996. It is likely therefore that employees will be reluctant to support employers in respect of dismissals which may be connected to whistleblowing unless employers can offer the necessary assurance that their actions will not amount to a statutory breach. Clearly this will necessitate a careful legal analysis before the dismissal is carried out.

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