Search

How can we help?

Icon

Whistleblowing detriment: Personal liability for individual decision makers

In Timis v Osipov, the Court of Appeal held that two directors were personally liable for detrimental treatment following protected disclosures even where the detriment in question amounted to a dismissal.

The claimant was dismissed by International Petroleum Limited (IPL) after making a number of protected disclosures on issues relating to poor corporate governance.  Two non-executive directors of IPL were found to have given specific advice/instructions to dismiss the claimant.

In addition to claims against the employer, the claimant successfully brought claims against the two directors personally on the basis that they too subjected him to detrimental treatment because of his protected disclosures (whistleblowing detriment).

Personal Liability

Changes to the law in 2013 extended the protection afforded to whistleblowers.  Prior to this date claims could only be made in relation to acts or omissions of the employer but, since 2013, an individual has had the right not to be subjected to any whistleblowing detriment by their employer, their colleagues or any agents of the employer. This case allowed the Court of Appeal to confirm that the 2013 amendment created a means of personal liability as well as a route to vicarious liability.

In Timis v Osipov, the Court of Appeal held that two directors were personally liable for detrimental treatment following protected disclosures even where the detriment in question amounted to a dismissal.

Detriment vs Dismissal

The law states that a claim for whistleblowing detriment cannot be brought where the detriment amounts to a dismissal (within the meaning of Part X of the Employment Rights Act 1996).  Such claims should be pursued as automatic unfair dismissal claims instead.

The directors in this case argued that the detriment (namely giving the advice/instruction to dismiss) actually amounted to a dismissal and, as such, could not be pursued as a detriment claim.  The Court of Appeal agreed that the detriment amounted to a dismissal, however, it found that Part X was only concerned with claims against the employer and, as such, did not apply here where the claims were against individuals.  Therefore, the claims were not caught by the exclusion above and could be pursued as whistleblowing detriment claims.

This case will be welcomed by employees, especially those whose employers are insolvent (as was the case with IPL) and may see more decision makers being added to such claims.  Employers should ensure that they have a clear whistleblowing procedure and policy in place and provide guidance, particularly to those managing employees, on their obligations and best practice in this regard.

About this article

Disclaimer
This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full General Notices on our website.

About this article

Read, listen and watch our latest insights

art
  • 31 October 2024
  • Employment

Potential impact of the Employment Rights Bill – Amanda Glover and Jesse Akiwumi write for Employee Benefits

Amanda Glover and Jesse Akiwumi write for Employee Benefits about the Employment Rights Bill, which addresses exploitative zero-hour contracts and allows workers to opt for guaranteed hours.

art
  • 29 October 2024
  • Privacy and Data Protection

The ICO’s 2024-2025 priorities for protecting children’s personal information online

The Information Commissioner Officer (the “ICO”) has set out its 2024-2025 priorities for protecting children’s personal information online.

Pub
  • 25 October 2024
  • Employment

TUPE Podcast Series: Changing Terms and Conditions

In this seventh episode of our TUPE Podcast Series, Louise Keenan will discuss the restrictions on changing terms and conditions for employees who are transferring. 

art
  • 25 October 2024
  • Employment

Changing Attitudes to Menopause

We have set out some answers to the frequently asked questions that employers ask when considering how to support a menopausal employee.

art
  • 25 October 2024
  • Employment

Court rules that ignoring employee’s greeting contributed to a breach of trust and confidence

In a recent ruling, an Employment Tribunal held that an employer had contributed to the breakdown of the trust and confidence with their employee by failing to respond to the employee’s greeting.

art
  • 21 October 2024
  • Commercial Real Estate

Commercial Property Standard Enquiries (CPSE): why is it important to get them right?

Commercial Property Standard Enquiries (CPSE) have been a part of a commercial property transaction for over two decades now. Nonetheless, it would be safe to say they can be tricky to deal with.