Employers can still be held vicariously liable for whistleblowing detriment amounting to dismissal…for now at least!

Those who blow the whistle on their employer for various specified categories of wrongdoing are protected against both (i) dismissal (s.103A, Part X, ERA 1996); and (ii) any other detriment (s.47(B), Part V, ERA 1996).

The protection applies to dismissal cases if the reason for the dismissal is that the employee made a protected disclosure. The protection applies to other detriment cases if the detriment occurs on the ground that the employee made a protected disclosure. The causation test is therefore different under both limbs.

On the face of the statute, dismissal and detriment claims are mutually exclusive since S.47B(2) unambiguously provides that where the detriment ‘amounts to dismissal’ (within the meaning of Part X)’, employees cannot make a detriment claim under Part V.

Lord Justice Underhill rather muddied the pitch in Osipov [2018] EWCA Civ 2321, by expressing the view that employees could bring S.47B (Part V) detriment claims against co-workers for dismissal for which the employer would be vicariously liable under S.47B(1B). He said that S.47B(2) only excluded claims against the employer in respect of its own act of dismissal (rather than claims based on co-workers’ acts of dismissal). None of this made apparent sense to the writer because a dismissal by a co-worker is surely a dismissal by the employer!

In Rice v Wicked Vision Ltd (Protect intervening) [2025] EWCA Civ 1446, the Court of Appeal, having examined the relevant statutory provisions, respectfully disagreed with Underhill LJ’s analysis. It agreed with the writer’s humble view that S.47B(2) unambiguously provides that where the detriment ‘amounts to dismissal’ (within the meaning of Part X)’, employees cannot bring a detriment claim under Part V. Accordingly, employees should not be able to bring a S.47B detriment claim – whether against employer or co-worker – if the substance of their complaint is dismissal by the employer, and their claimed losses flow from that dismissal.

However, despite disagreeing with Osipov, the Court concluded that it was bound by precedent to follow it. The Court noted the unsatisfactory situation where the courts have produced conflicting decisions on the construction of the relevant legislation. However, this could only be resolved by the Supreme Court or by legislative amendment.

Watch this space!