The Osipov case: opening the floodgates to whistleblowing claims?

by Nick Humphreys & Alex Brooks

2017 has already seen a number of significant developments in employment law. The decision of the Employment Appeal Tribunal (“EAT”) in International Petroleum Ltd & Ors v Osipov & Ors (UKEAT/0058/17/DA) is another that could have significant effects, specifically in the context of individuals that believe they have been dismissed in consequence of their having made a protected, public interest disclosure (commonly referred to as “whistleblowing”).

Whistleblower protection in brief

Whistleblowers are afforded various protections under the Employment Rights Act 1996 (“ERA”). In brief, these are as follows:

  • ERA s.47B provides that a worker (or an employee) may not be subjected by a co-worker, or by an authorised agent of the employer, to any detriment “on the ground that the worker has made a protected disclosure”. Any act of detriment that is committed by a co-worker (or agent) shall be treated as also having been committed directly by the employer (in other words, the employer has vicarious liability for the acts of its workers and agents). However, ERA s.47B(2) expressly prevents employees from treating a dismissal by the employer as a detriment for the purposes of ERA s.47B; accordingly, an employee can only bring an ERA s.47B claim against a co-worker or agent of the employer, and not directly against the employer itself.
  • ERA s.103A provides that the dismissal of an employee shall automatically be unfair where the fact that they have made a protected disclosure is the “reason or principal reason” for their dismissal. Workers (as opposed to employees) are expressly prevented from bringing a claim under ERA s.103A.

It is well-established that the standard of proof required to prove a case under ERA s.47B is lower than that required under ERA s.103A (see, for example, Fecitt Martin v Devonshires Solicitors [2011] ICR 352 EAT). Specifically, under ERA s.47B it is merely necessary for the protected disclosure to be a significant influence in the decision to subject the whistleblower to a detriment, without necessarily being the sole or principal reason for that decision (as is required under ERA s.103A).

Despite the relative ease with which ERA s.47B claims can be successfully brought against individuals, such cases are surprisingly rare.

The Osipov decision

In Osipov, the claimant (an employee) was a whistleblower who was subsequently dismissed lawfully, because he had not been completing his duties. The claimant complained that the only reason that he had no carried out his duties was that he had been prevented from doing so because he had made a number of protected disclosures.

Accordingly, the claimant brought an ERA s.47B claim on the grounds that the decision to dismiss him was based on detriments that the claimant had been subjected to in consequence of the fact that he was a whistleblower.

The EAT found that it was permissible for a whistleblower to bring a claim against a co-worker for detriments, up to and including dismissal in consequence of the putative whistleblower having blown the whistle (see para. 156 of the Osipov judgment). In this regard, the dismissing officers were found to be jointly and severally liable for the detriments suffered by the claimant, including his losses as a result of his dismissal (which was the direct consequence of those detriments).

The natural consequence of this was that the employer was vicariously liable for the actions of the dismissing officers, with the result that the employer also had joint and several liability with the co-worker for the detriments suffered by the claimant.

Comment

Perhaps the most significant effect of the Osipov decision is that it enables employees to indirectly bring ERA s.47B claims for whistleblowing-related dismissal against their employer, effectively bypassing ERA s.103A and needing only to establish that their protected disclosure was a significant influence in the decision to terminate their employment, without needing to establish that it was the sole or principal reason for the dismissal.

Accordingly, the Osipov decision will be extremely welcome for employees, since it effectively extends the statutory protection afforded to whistleblowers by making it easier for successful claims to be brought in respect of whistleblowing-related dismissals.

On the contrary, employers shall need to be additionally careful when considering the dismissal of any individual that may have made a protected disclosure. In this regard, employers should particularly bear in mind that it may not always be obvious when a protected disclosure has been made by an employee; accordingly, this case should serve as a sharp reminder to all employees of the importance of ensuring that they have in place a clear whistleblowing policy that is well-understood by all employees, and particularly by those with line management responsibilities.

If you wish to discuss any of the issues in this article, please contact Nick Humphreys or Alex Brooks in the Employment team, whose details appear below.

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About the contributors

  • Nick Humphreys Partner

    Nick has acted for numerous multi-national, publically listed corporations as well as public and third sector clients. His clients include travel sector clients, industrial conglomerates, hotels, media organisations, marine businesses and charities

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  • Alex Brooks Solicitor

    Alex advises on the full range of contentious and non-contentious employment law and HR issues and acts for both employers and individuals on employment tribunal claims involving unfair dismissal, discrimination, breach of contract and whistleblowing

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