Employment Tribunal Whistleblowing Claims – Confusion Reigns

A recent Court of Appeal judgment in the important whistleblowing cases Wicked Vision and Barton Turns highlights the need for employment law reform. To quote from its final sentence:

“It is plainly unsatisfactory that the construction of this legislation has now produced conflicting decisions at three levels of court [Employment Tribunal, Employment Appeal Tribunal & Court of Appeal], but that can only be resolved by the Supreme Court or by amendment to the legislation”.

This article considers the current confusion highlighted by these cases and the need for greater clarity as they head to the Supreme Court. It then asks whether the Government’s seismic plans to reform unfair dismissal law could provide an accidental solution, at least up to a point: as the saying goes, “every cloud has a silver lining”.   

What’s the problem?
 

The UK’s legal rules on the protection of whistleblowers, as originally introduced in the Public Interest Disclosure Act 1998 and then amended in 2013, are technical and complex. For historic reasons, they contain separate rules on whistleblowing detriment claims and whistleblowing dismissal claims. There are important distinctions between them: in particular, the rules on whistleblowing detriment claims are wider in various ways.  They protect the wider class of “worker” (whereas the dismissal rules only apply to employees), contain a less restrictive causation test, permit claims against co-workers (rather than only against the employer entity) and also permit claims for injury to feelings compensation (rather than only financial losses).

In many ways, this means the whistleblowing detriment provisions mirror discrimination law, whereas the whistleblowing dismissal provisions mirror unfair dismissal law.  That said, there is no need in a whistleblowing dismissal claim for the Claimant to have any prior length of service, as is currently the case for an ordinary unfair dismissal claim, and the cap on compensation that applies to the latter does not apply to a whistleblowing dismissal claim.

The net effect of all this is that many Employment Tribunal claimants seek to bring whistleblowing claims for strategic and leverage reasons. They often bring claims against senior managers personally, rather than only against the employer.    

In 2018 the Court of Appeal appeared to have squared the circle between the different rules on whistleblowing detriment and dismissal claims in the seminal case of Osipov. On the face of the legislation, there is a clear distinction between the whistleblowing detriment and dismissal claims rules.  Within the detriment claims rules, there is a proviso that they do not apply to claims by an employee for any detriment which “amounts to dismissal”. The employer had gone insolvent, hence the whistleblower wanted to be able to claim compensation for his dismissal from the directors who dismissed him. He did so by claiming for the “detriment of dismissal” against the directors personally.  The Court of Appeal held that detriment of dismissal claims against co-workers are permissible, with the above proviso only serving to prevent employees from bringing detriment of dismissal claims against employers.  This meant that the claimant was able to recover their compensation against the directors (who were insured under D&O insurance). 

The Osipov decision therefore highlighted the anomalies between the rules on whistleblowing detriment and dismissal claims but found a pragmatic solution to them. This was based on the express purpose of the legislation: to protect whistleblowers. According to the judgement, if claimants were prevented from bringing claims against co-workers for the detriment of dismissal, this would produce an incoherent and unsatisfactory result, which the Court considered was unlikely to have been the intention of Parliament. 

By contrast, in Wicked Vision three Court of Appeal judges have indicated that they respectfully disagree with the Osipov decision, whilst holding that they were bound by precedent to follow it. This means that, as things stand, whistleblowing claims for the detriment of dismissal against senior managers remain possible.  However, the case has been appealed to the Supreme Court and the hope is that this will clarify the position.

Practical issues
 

The confusion surrounding existing whistleblowing law, coupled with the potential strategic advantages for claimants, has increasingly been leading to very long, drawn out claims. Many cases get bogged down in all the technical complexities of the rules and, coupled with the increasingly severe delays in employment tribunal litigation, cases can now take years to resolve. As an example, the Claimant in Wicked Vision was dismissed in February 2021 and five years later their case is now in the Supreme Court simply to clarify a preliminary question: whether there can be an amendment to their claim to include a “detriment of dismissal” claim. 

GCs and senior managers should remain vigilant to minimise the risk of claims against them personally for the detriment of dismissal.  In our experience, this can materialise even if they are only involved on the margins of the decision to dismiss an individual claiming to be a whistleblower.  Similarly, managers and GCs involved in internal investigations can be caught out by the current interpretation of the law (i.e. they may be personally pursued for detriment).  Depending on the seriousness of the issues, employers should consider the appointment of an independent, external investigator to carry out a fact-finding investigation when facing potential legal and regulatory risks along with the inevitable risk of whistleblowing claims in tribunal.

A possible accidental solution?
 

The Employment Rights Act 2025 is introducing the most significant changes to unfair dismissal law seen in decades. With effect from 1 January 2027, the qualifying period for unfair dismissal protection will be reduced from two years to six months, and the cap on the compensatory award (currently £118,223) for unfair dismissal claims will be lifted. Employers will need to tighten their disciplinary, grievance, performance management and consultation procedures, in light of the far greater risk of unfair dismissal claims. However, by way of “silver lining” it appears that in future, less claimants will decide to pursue whistleblowing and discrimination claims solely or mainly for strategic leverage reasons (notably that there is no compensation cap or length of service requirement in these cases).

About the author

Andreas is a partner in our employment team. He has substantial litigation experience, with a particular focus on complex and high value employment and partnership disputes.