Welcome back to another case of the week. This week we’re looking at Unfair Dismissal, Whistleblowing and Protected Disclosures in the recent case of Wicked Vision Ltd v Rice.

The Claimant was employed by the Respondent as the Head of Sales at Wicked Vision Ltd from 19 November 2017 until his dismissal on 18 February 2021.  The reason given for his dismissal was redundancy.  However, the Claimant alleged that he was dismissed because he made protected disclosures about breaches of the Coronavirus Job Retention Scheme where employees were still required to work despite being paid furlough.

Following the claim, the Claimant then applied to Employment Tribunal (“ET”) to amend his claim by adding Mr Strang, the owner of Wicked Vision Ltd, as a separate Respondent. The Claimant argued that Mr Strang was also a co-worker, Mr Strang should be held liable for vicarious liability upon his dismissal. Section 47B(1A) states, “A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.”

The ET held that there was a claim of automatic unfair dismissal, and that Mr Strang could be added as an additional Respondent following the application of Section 47B(1A).

However, the Respondent raised the argument that Section 47B(1A) didn’t apply because Section 47B(2) stated that the entire section of the Act didn’t apply to employees where such “detriment in question amounts to dismissal”. On that basis, Mr Strang appealed the ET’s decision in accepting Section 47B(1A).

The Employment Appeal Tribunal (“EAT”)

The issue facing the EAT was statutory construction. The Employment Judge had to decide whether there was a claim under Section 47B(1A) which supported the Claimant’s amended claim or whether Section 47B(2) applied, in support of the Respondent’s appeal.

The EAT held that Mr Strang was the owner of the business and therefore his acts during the business were the same as the company’s acts. In other words, only the Company could be held liable since there “wasn’t any real factual distinction” between the company and Mr Strang.  The Appeal was allowed, dismissing the amended claim.

Takeaway Points

This case highlights some important points concerning Whistleblowing and Protected Disclosures.

Firstly, the law protects employees that whistle-blow.

Secondly, per Asipov a claim can be brought against an individual employee for whistleblowing detriments but in limited circumstances. Distinctions should be drawn between detriments for example instructions to dismiss and dismissals which are separate and do not amount to a detriment.

Thirdly, a claim against an individual respondent such as another employee will fail if the claim is not pleaded with sufficient precision for example, distinguishing between pre-dismissal detriments such as manufacturing a case or instructing another employee to dismiss and dismissal itself.

If you or someone you know are dealing with a similar issue, please contact us for further assistance.