Whistleblowing detriment dismissals and personal liability


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The Court of Appeal has held in Timis and anor v Osipov that two non-executive directors (NEDs) were liable for their part in dismissing a whistleblower.

Mr Osipov was the CEO of International Petroleum Ltd. Within days of commencing his role he made a number of protected disclosures related to corporate governance and compliance with legal requirements (the company was concerned with exploration in Niger at the time). There then followed a number of alleged detriments, including excluding Mr Osipov from further participation in the company's work in Niger and culminating in an instruction from one NED to another to dismiss Mr Osipov from his role. He issued tribunal proceedings alleging that he had been subjected to detriments and unfairly dismissed for having made protected disclosures. His detriment claims were made against his employer and against the NEDs. The tribunal awarded compensation for the detriments and the dismissal against all three on a joint and several basis. On appeal, the EAT agreed with the tribunal's decision.

The Court of Appeal rejected the NEDs' argument that they could not be personally liable for the decision to dismiss. They argued that, since the whistleblowing provisions in the Employment Rights Act 1996 (ERA) provide that a detriment which amounts to dismissal by the employer can only be brought against an employer, their liability was restricted to pre-dismissal detriments. The Court held that the whistleblowing provisions in the ERA specifically provide for the individual liability of a fellow worker for detriments and that there was nothing in the wording of those provisions to limit the detriments caught by them, or to exclude from individual liability detriments amounting to the termination of the working relationship.

Take note: The decision in Osipov shows that it is possible for an employee to bring a claim against a fellow worker for whistleblowing detriment where the detriment is a dismissal. It will be an option open to an employee to bring a claim against such a worker if (as was the case here), the employing company has gone into liquidation but the worker may have sufficient personal funds to pay any award.

This article is taken from HR Law - November 2018.

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