Bring Claims Against Individuals in the Employment Tribunal

Claims Against Individuals in the Employment Tribunal

Navigating the complexities of employment law can often feel like trekking through a dense forest, where the immediate focus is usually on the sprawling entity of the employer. Yet, a crucial aspect often overlooked by those seeking redress, and indeed those defending against claims, is the potential for individual accountability within the Employment Tribunal. This means that claims can, in specific circumstances, be brought directly against individuals involved in alleged workplace misconduct, reinforcing the principle that personal actions have consequences.

Discrimination Claims Against Individuals

Under the Equality Act 2010, individuals connected to an employer can be named as co-respondents alongside the employer itself, or in some instances, even as the sole respondent. This avenue is primarily available for claims of direct discrimination, harassment, and victimisation.

A key principle here is joint and several liability. If a discrimination claim succeeds against both an employer and an individual, both parties are held responsible for the full amount of any compensation awarded. However, tribunals no longer have the power to apportion compensation between respondents as they once did. Despite this, one respondent may still seek a contribution from the other via a separate claim under the Civil Liability (Contribution) Act 1978.

A critical consideration in discrimination cases is the employer's "reasonable steps" defence under section 109(4) of the Equality Act 2010. This defence is exclusively available to employers. If an employer successfully argues that they took all reasonable steps to prevent the discriminatory act, but the claim still succeeds against the individual, that individual could be held solely liable for any compensation awarded, without recourse to a contribution from the employer. This creates a potential conflict of interest for legal representatives who might initially consider representing both the employer and an individual respondent. Such representation is only permissible if there is a "substantially common interest" between the clients, they provide informed consent, and effective safeguards are in place for confidential information, and it is reasonable for the solicitor to act for all clients. This reflects the overarching duty to act in the best interests of each client.

Case law explicitly supports the ability to bring claims against individuals. For example, in Barlow v Stone [2007] I.C.R. 641, it was affirmed that an employee could bring a claim solely against the individual who discriminated against, harassed, or victimised them, without needing to include the employer. While this is possible, claimants often include the employer due to their greater likelihood of having the means to pay any award.

Whistleblowing Claims Against Individuals

The Employment Rights Act 1996 (ERA 1996), particularly following amendments on 25 June 2013, introduced provisions for personal liability for individuals in whistleblowing claims. Specifically, sections 47B(1A) to (1E) of the ERA 1996 enable claims against:

• Workers who victimise whistleblower colleagues in the course of their employment.

• Agents of the employer acting with the employer's authority.

The term "worker" here has an extended meaning. The interpretation of "in the course of employment" for co-workers and "with the employer's authority" for agents mirrors that in discrimination legislation. This means that an individual co-worker or agent can be named as a respondent and be personally liable for damages.

A significant development in this area concerns the "detriment of dismissal." While unfair dismissal claims can generally only be brought against the employer, individuals can be held liable for causing the detriment of dismissal. This was powerfully illustrated in Timis v Osipov [2019] I.C.R. 655 where two non-executive directors (NEDs) were found personally liable for the detriment of dismissal suffered by an employee, Mr Osipov, after he made protected disclosures. This personal liability extended to post-dismissal losses, totalling over £2 million, despite the employing company being insolvent.

Employers can also be held vicariously liable for detrimental treatment caused by their employees, workers, and agents under section 47B(1B) of the ERA 1996. This provision was introduced to address a previous gap in the law, as highlighted in Fecitt v NHS Manchester [2012] I.C.R. 372, where employers could not be vicariously liable for whistleblowing victimisation by colleagues. However, there is an important note regarding vicarious liability for the detriment of dismissal. In Wicked Vision Ltd v Rice [2024] I.C.R. 675, the EAT held that vicarious liability for a co-worker's detriment of dismissal may not apply if the employee can already bring an automatically unfair dismissal claim directly against the employer under section 103A of the ERA 1996. This decision has been challenged, with a differently constituted EAT in Treadwell v Barton Turns Development Ltd [2024] EAT 137 considering itself bound by Osipov on this point, indicating ongoing legal debate.

The concept of "agents" in whistleblowing claims has also seen clarification. In Handa v Station Hotel (Newcastle) Ltd and others [2025] EAT 62, the EAT confirmed that HR consultants appointed to conduct grievance or disciplinary investigations could be regarded as an employer's agents when carrying out these employment-related functions.

Manipulation and Tainted Information (Jhuti Principle)

A complex scenario arises when a "manipulator" (a person aware of a protected disclosure) causes a whistleblower to suffer a detriment or be dismissed through an "innocent" individual who is unaware of the disclosure.

• For automatically unfair dismissal claims, the Supreme Court in Royal Mail Ltd v Jhuti [2020] I.C.R. 731 held that where a manager in a position of responsibility above the employee hides the real, protected disclosure-related reason for dismissal behind invented allegations, the manipulator's state of mind can be attributed to the employer, even if the decision-maker is innocent. This allows the claim to proceed against the employer.

• However, for detriment claims, the position is different. In Malik v Cenkos Securities Plc [2018] 1 WLUK 173, the EAT ruled that for a detriment claim to succeed, the individual who directly subjects the whistleblower to the detriment must personally be motivated by the protected disclosure. This distinction was recently affirmed in William v Lewisham and Greenwich NHS Trust [2024] I.C.R. 1065, which stated that the Jhuti principle, specific to dismissal claims, does not apply to detriment claims under section 47B of the ERA 1996.

Practically, in cases of suspected manipulation, claimants are advised to bring claims directly against both the manipulator and any "innocent actor" under section 47B(1A) of the ERA 1996, as well as against the employer under section 47B(1) (who would be vicariously liable for the manipulator's detrimental act). Courts are keen to prevent "deliberately opaque decision-making" from allowing individuals to escape liability, as highlighted in Commissioner of Police of the Metropolis v Denby [2017] 10 WLUK 543 (a discrimination case applying the principles from CLFIS (UK) Ltd v Reynolds [2015] I.C.R. 1010

Tactical Considerations for Claimants

Claimants may choose to pursue claims against individuals for several strategic reasons:

• Pressure for Settlement: Naming co-workers as additional respondents can exert significant pressure on the employer, potentially encouraging an earlier settlement.

• Insolvency of Employer: If the employer is insolvent or unlikely to be able to pay a compensatory award, bringing a detriment claim directly against a co-worker can increase the likelihood of the employee receiving compensation if the claim is successful.

• Causation Test Advantage (Detriment vs. Dismissal): In detriment claims, the whistleblower only needs to prove that the protected disclosure "materially influenced" the employer's treatment (meaning more than a trivial influence). This is arguably a lower threshold than for automatically unfair dismissal claims, where the disclosure must be the "reason or principal reason" for dismissal. This difference was affirmed in NHS Manchester v Fecitt and others [2012] I.C.R. 372
  

• Injury to Feelings: Compensation for injury to feelings can be awarded in detriment claims, but not in unfair dismissal claims.

• No "Reasonable Steps" Defence for Dismissal Claims: While employers have a "reasonable steps" defence for vicarious liability in whistleblowing detriment claims, this defence is not available in automatic unfair dismissal claims.

Burden of Proof

The burden of proof in these claims is distinct:

• Detriment Claims: The employee must prove that they made a protected disclosure and suffered a detriment. The employer then bears the burden of proving the reason for the detrimental treatment. If the employer fails to prove an admissible reason, the tribunal may (but is not obligated to) infer that the detriment was on the ground of the protected disclosure, as seen in Ibekwe v Sussex Partnership NHS Foundation Trust [2014] 11 WLUK 593 and Kuzel v Roche Products Ltd [2008] I.C.R. 945 in the EAT and then further endorsed by the Court of Appeal.

• Automatically Unfair Dismissal Claims: The employee must show they are entitled to bring an unfair dismissal claim and made a protected disclosure. However, the burden generally remains on the employer to show the reason or principal reason for dismissal, especially if the employee has the requisite qualifying service. If the employer's stated reason is rejected, the tribunal may infer the protected disclosure was the true reason, but the employee does not bear the burden of proving this.

In conclusion, while the employer remains the primary target for Employment Tribunal claims, the legal framework, supported by key case law, explicitly allows for individuals to be held personally accountable for their actions in cases of discrimination and whistleblowing-related detriments. This dual accountability not only provides crucial recourse for affected individuals but also plays a vital role in promoting greater responsibility and appropriate conduct within the workplace.