Individuals Personally Liable for Whistleblowing Dismissal, Court of Appeal Rules

In a landmark judgment, the Court of Appeal has confirmed that individual managers can be held personally liable for dismissal in whistleblowing claims (Timis and Another v Osipov and Another).

The case concerned the former CEO of an oil exploration company who succeeded in an unfair dismissal claim against his former employer. His claim that two of the company's directors who had played a key role in the decision to dismiss him had subjected him to detriments for making protected disclosures was also upheld by an Employment Tribunal (ET).

That ruling was later confirmed by the Employment Appeal Tribunal and the company and the two directors were found jointly and severally liable to pay the man more than £2 million in damages. In challenging that decision, the two directors argued that it had not been open to the ET to award compensation against them, as individuals, for the losses occasioned by the man's dismissal as a dismissal claim could only be pursued against the employer.

In ruling on their appeal, the Court noted that the issue had real importance beyond the facts of the particular case and that whistleblower charity Protect had been permitted to put forward arguments as intervener. Because the company was insolvent, a finding of personal liability on the directors' part was critical to the man's case. Although the directors had the benefit of insurance, which would cover the full amount of his claim, that would not be so in every case.

In dismissing the appeal, the Court found that it is open to an employee to bring a claim under Section 47B(1A) of the Employment Rights Act 1996 against an individual co-worker for subjecting him or her to the detriment of dismissal. As the directors had been party to the decision to subject him to that detriment, their personal liability was established. The Court also found that, if a whistleblower is subjected to a detrimental act by a co-worker and that act results in dismissal, then losses arising can be recovered from the co-worker personally.

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Where whistleblowing was a significant motivating factor behind the decision of an officer of a company to instigate a claimant's dismissal, the claimant may consider it worthwhile bringing not only a claim against the employer for automatic unfair dismissal but also a claim for detriment leading to dismissal against the individual behind the decision to dismiss, for whose actions the employer may be vicariously liable. Clearly, any complaint linked to whistleblowing must be identified at an early stage and handled with extreme caution. We can advise you on your individual circumstances.
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