Individuals can be liable for losses flowing from whistle-blower dismissal
Friday 9th November 2018
The Court of Appeal, in Timis and another v Osipov, has ruled that if a co-worker victimises a whistle-blower so as to lead to their dismissal, then that co-worker can be personally liable for the losses suffered by the dismissed.
Workers have the right not to be subjected to a detriment on the ground that they have made a protected disclosure. Where they do, the worker may bring a claim against their employer and/or the co-worker in question.
The law previously drew a distinction between dismissal and detriment. In the case of dismissal, it was thought the claim should be for unfair dismissal against the employer only. This is no longer the case, and can now be against both the individual who was a party to the decision to dismiss, and the employer, being vicariously liable for its employees’ actions.
Mr Osipov was an employee and, for a short time, the CEO of International Petroleum Limited (IP Limited). During his time as CEO, Mr Osipov made a number of disclosures that qualified as protected disclosures. Shortly after the final disclosure, Mr Osipov’s employment was terminated with immediate effect by two non-executive directors, Mr Timis and Mr Sage.
Mr Osipov successfully claimed automatic unfair dismissal, on the basis that the principal reason for his dismissal had been that he had made protected disclosures. He was also successful in arguing that Messrs Timis and Sage were jointly and severally liable, along with IP Limited (now insolvent), for the £1,745,000 compensation awarded. They duly appealed.
Decision and comment
The Court dismissed the appeal, noting that as Parliament had seen fit to extend personal liability for whistle-blower detriment, it was hard to imagine that it had intended to exclude such liability where the detriment was dismissal.
As decisions to dismiss will almost inevitably be made by one or more individual(s), claimants have a second bite at the cherry and may pursue the employer with an unfair dismissal claim and the individual by means of a detriment claim. In instances where the individual has deeper pockets than the organisation, for example where a company is insolvent, small, or new, this could be an attractive option. It is worth noting as well that for detriment claims, an injury to feelings award may be made.
Employers should put in place appropriate internal processes, and training to ensure all parties are aware of their obligations and potential liability. The warning for individual decisions makers who cause or carry out the dismissal is self-explanatory.