In Timis and anor v Osipov, the Court of Appeal considered whether employees may pursue an individual co-worker in relation to unfavourable treatment (including dismissal) they have suffered as a result of blowing the whistle, even though the legislation explicitly excludes detriment claims where the detriment suffered amounts to dismissal.
In this case, the Claimant was the CEO of an oil and gas exploration company who had made four protected disclosures before being dismissed. Two non-executive directors were implicated in the Claimant’s dismissal. One director, who was also a majority shareholder, instructed the other to dismiss the Claimant a mere three days after the final disclosure was made. The Claimant brought detriment claims against the directors personally, and a claim of automatic unfair dismissal against the company.
The Court found that the exclusion in the legislation must only apply to claims brought against the employer: not those brought against individual co-workers. Where a claim is brought against the employer, the employee could bring an automatic unfair dismissal claim to deal with the detriment of dismissal, but unfair dismissal claims are not available against individuals. The Court considered that if the employee was unable to claim for detriment amounting to dismissal against their employer but not against an individual co-worker, it would produce an “incoherent and unsatisfactory result”.
The Court also found that where the detriment is discrete from, and takes place prior to, the dismissal (in this case, the email instructing the director to dismiss the Claimant), but results in the Claimant’s dismissal nevertheless, the Claimant can be awarded compensation to cover their losses flowing from the dismissal, subject to the usual rules of remoteness.
This is a technical case, but employers and senior employees should be aware of the ramifications. Employees (especially those in senior positions who are involved in management) should be reminded that they can be individually liable for the detriment suffered by a whistleblower, including the losses stemming from termination. The risk to individual employees becomes heightened where the employing company is insolvent, although directors may be covered by insurance.