EAT decision clarifies limits of whistleblower protection in unfair dismissal case

Citation: [2024] EAT 29
Judgment on

Introduction

The Employment Appeal Tribunal (EAT) decision in Wicked Vision Ltd v I Rice [2024] EAT 29 discusses the application of protected disclosure provisions under UK employment law, with a focus on the intersection of unfair dismissal and whistleblower protection. This article will analyze the legal principles at play, the relationship between separate statutory frameworks, and the outcome of the case.

Key Facts

The case revolves around Mr I Rice, formerly employed by Wicked Vision Ltd, who was dismissed on grounds of redundancy. Mr Rice alleged that the real reason for his dismissal was his whistleblowing about the company’s breaches of the Coronavirus Job Retention Scheme. An initial claim under section 94 (unfair dismissal) and section 103A (automatically unfair dismissal due to whistleblowing) of the Employment Rights Act 1996 (ERA 1996) was made. Subsequently, Mr Rice sought to amend his claim to include a detriment claim under section 47B, asserting that his dismissal was a detriment inflicted by a co-worker - the company’s owner, Mr David Strang - for which the company is vicariously liable.

The EAT’s analysis rested on interpreting several provisions of the ERA 1996:

  1. Unfair Dismissal (Part X of the ERA 1996): Defines dismissal and is applicable solely to employees.

  2. Whistleblowing and Protected Disclosures (Part IVA and V of the ERA 1996): Outlines the right for workers not to be subjected to any detriment by their employer as a result of making a protected disclosure.

  3. Section 47B(1A) and (1B): Introduced by amendments in 2013, they address vicarious liability for employers when a worker has been subjected to detriment by another worker’s actions.

  4. Section 47B(2): Key to this case, it provides that Section 47B does not apply to detriments amounting to dismissal under Part X.

The EAT had to consider whether an employee, despite section 47B(2), could bring a claim against an employer for vicarious liability for the actions of a co-worker amounting to dismissal. The EAT referred to the case Timis and another v Osipov [2019] ICR 655 CA, which established that section 47B(2) did not prevent a claimant from proceeding against co-workers under Part V based on their responsibility for the dismissal itself.

Outcomes

The EAT concluded that the proposed amendment was barred by section 47B(2) of the ERA 1996. It was reasoned that the amendment allowed an unfair dismissal claim to be repackaged as a detriment claim against the employer under section 47B, which was not the intention of the legislation. The Tribunal determined that the amended claim fell within the scope of an unfair dismissal claim under section 103A of the ERA 1996.

Conclusion

In Wicked Vision Ltd v I Rice, the EAT elucidated on the scope of section 47B of the ERA 1996 and its application in cases of alleged detriment amounting to dismissal. The decision reinforces the principle that where the detriment equates to dismissal – for which a claim under Part X could be advanced – section 47B should not provide an alternative avenue for a claim. This clarification will assist legal professionals in understanding and advising on the limits of potential claims under the overlapping regimes of unfair dismissal and whistleblower protection in UK employment law.

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