Whistleblowing Detriment and Automatic Unfair Dismissal


Detriment and Automatic Unfair Dismissal

This page explains the legal claims available under the Employment Rights Act 1996 (ERA 1996) to whistleblowers who believe they have suffered a detriment or been automatically unfairly dismissed on grounds of having made a protected disclosure. The scope of the note covers detriment claims, including the meaning of detriment, the extent of personal liability on co-workers, and the vicarious liability of employers for such individual liability.

Automatically Unfair Dismissal

Automatically unfair dismissal claims discuss issues of causation and whether dismissal is on grounds of the consequences of a protected disclosure rather than the disclosure itself. The burden of proof is examined for both types of claims. The note also considers the scenario where a "manipulator" causes a whistleblower to be subjected to a detriment or dismissed by an "innocent" individual who does not know about any protected disclosure. The possibility of separating a protected disclosure from genuine misconduct on the part of the whistleblower is also considered. If the claimant's employment status is unclear, it may be advisable to bring claims for detriment and unfair dismissal in the alternative.

Whistleblowing Detriment

The term "detriment" is not defined in the ERA 1996, and tribunals have looked to the meaning established by discrimination case law. In Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285, it was held that a worker suffers a detriment if a reasonable worker would or might take the view that they have been disadvantaged in the circumstances in which they had to work. An "unjustified sense of grievance" is not enough.

In Blackbay Ventures Ltd (t/a Chemistree) v Gahir UKEAT/0449/12, the EAT overturned a tribunal's finding that the employer had subjected the worker to a detriment by failing to address a number of complaints she had raised which showed that the employer was failing to comply with statutory requirements for the control of medicines. The EAT noted that the employer had responded promptly and in detail to her concerns, and there was only a very short period of time after raising the issues in which she could have suffered any stress, since her employment ended a few days later.

In Marriott v Scarborough Borough Council ET/1800295/2016, an employment tribunal found that an employee had been subjected to a detriment when his confidentiality as a whistleblower was not respected. In Jesudason v Alder Hey Children's NHS Foundation Trust [2020] EWCA Civ 73, the Court of Appeal held that no reasonable employee could have considered that the letters amounted to a detriment, since the employer was merely defending its position.

In McCabe v Selazar Ltd ET/2200501/2021, an employment tribunal found that Selazar had subjected Mrs McCabe to detriments for raising protected disclosures by removing her as a Companies House director without following due process, placing her on garden leave, subjecting her to a disciplinary process without being given the opportunity to respond to any allegations at the investigatory stage, refusing her request for an EGM despite it being supported by her whistleblowing report, and failing to provide an appropriate reference.

In Blackbay Ventures Ltd (t/a Chemistree) v Gahir UKEAT/0449/12, the Employment Tribunals Association (EAT) suggested that employment tribunals should take the following approach when considering detriment claims:

  1. Identify each disclosure by reference to date and content.

  2. Address the alleged failure or likely failure to comply with a legal obligation or matter giving rise to the health and safety of an individual.

  3. Address the basis upon which the disclosure is said to be protected and qualifying.

  4. Separately identify each failure or likely failure.

  5. If a breach of a legal obligation is asserted, identify the source of the obligation.

  6. The employment tribunal should consider the cumulative effect of a number of complaints, provided they have been properly identified as protected disclosures.

  7. Determine whether the claimant had the reasonable belief referred to in section 43B(1), whether each disclosure was made in good faith, and whether it was made in the public interest.

  8. If the claimant has suffered a detriment short of dismissal, it is necessary to identify the detriment in question and, where relevant, the date of the act or deliberate failure to act relied upon by the claimant.

The scope of employment should not be drawn narrowly, and there are bound to be borderline cases, so this case should not attempt any definitive guidance.

Section 47B(1) of the ERA 1996 expressly states that a worker has the right not to be subjected to any detriment by any act or deliberate failure to act by their employer on grounds that they have made a protected disclosure.

“Subjected to” A Question of Causation

The meaning of "subjected to" in whistleblowing provisions is not defined, but it has the same force and meaning as causation. In Abertawe Bro Morgannwg University Health Board v Ferguson UKEAT/0044/13, the EAT considered the meaning of these words and held that they had the same force and meaning as causation. The EAT held that the words "deliberate failure to act" presupposed a duty, power or ability to take action, rather than having a formal power.

Frequent workers can still bring a claim for detriment under section 47B of the Enterprise and Regulatory Reform Act 1996 (ERA 1996). They can also pursue a whistleblowing claim against their current employer based on a protected disclosure they made while working for a previous employer. Section 19 of the Enterprise and Regulatory Reform Act 2013 introduced new sections 47B(1A) to (1E) of the ERA 1996, which bestowed personal liability on workers who victimise whistleblower colleagues in the course of their employment and agents of the employer acting with the employer's authority.

Claims Against the Company and Co-Workers

The introduction of personal liability means that an individual worker, and an agent of the employer acting with the employer's authority, can be named as a respondent to a tribunal claim and be personally liable for damages. A co-worker or agent is not liable for doing something that subjects the whistleblower to detriment if they do it in reliance on the employer stating that it is not unlawful and it is reasonable to rely on that statement.

In Handa v Station Hotel (Newcastle) Ltd and others [2025] EAT 62, the EAT held that a tribunal had erred when it held that two HR consultants, one appointed to undertake an investigation into grievances and the other to conduct a disciplinary hearing, were acting as an employer's agents when undertaking those functions.

In Timis v Osipov [2018] EWCA Civ 2321, an employee, Mr. Osipov, brought a detriment claim against two non-executive directors (NEDs) for dismissing him after making protected disclosures. The NEDs argued that their actions involved dismissal and were excluded from being brought as a detriment claim. However, the EAT and the Court of Appeal disagreed, drawing a distinction between dismissal by an employer within the meaning of the unfair dismissal provisions of the ERA 1996 and the detriment of dismissal caused by a co-worker which is not within those provisions. The NEDs' actions fell within the latter category, and Mr. Osipov could bring a claim under section 47B(1A) against the NEDs for subjecting him to the detriment of dismissal and also to bring a claim of vicarious liability for that act against the employer under section 47B(1B). The Court of Appeal further held that the NEDs could be held personally liable for the losses flowing from their actions, including losses flowing from the dismissal, totalling over £2 million.

Section 19 of the ERRA 2013 introduced vicarious liability to the whistleblowing provisions of the ERA 1996. Employers are liable for detriment caused by their employees, workers, and agents, including the detriment of dismissal. This provision was introduced to remedy the lacuna identified by the Court of Appeal in Fecitt v NHS Manchester [2011] EWCA Civ 1190, which ruled that employers could not be vicariously liable for the victimisation of a worker by their colleagues.

In the case of a co-worker (but not an employer's agent), the employer has a defense if it took all reasonable steps to prevent the detrimental treatment. The "Reasonable steps" defence applies to actions carried out by an employer's agent. The EAT's decision in Wicked Vision Ltd v Rice [2024] EAT 29 found that there can be no vicarious liability on an employer in respect of a co-worker or agent's imposition of a detriment amounting to dismissal where the employee already has an automatically unfair dismissal claim against the employer pursuant to clause 103A of the ERA 1996.

The "Reasonable steps" defence allows an employer to be potentially vicariously liable for something done by one of its workers acting in the course of their employment if it can show that it took "all reasonable steps to prevent the other worker from doing that thing or from doing anything of that description." This defence only applies where the employer has taken all reasonable steps, and an employer will still be liable if it has taken some, but not all, of the steps which the tribunal considers to be reasonable.