The EAT ruled that if the Claimant could bring an automatic unfair dismissal claim, then he could not also bring what was essentially the same claim as a detriment claim.

Wicked Vision Limited is owned by Mr David Strang. The Claimant was employed by the Company as Head of UK Sales until he was dismissed on 18 February 2021. The reason given for his dismissal was redundancy and the decision was taken by Mr Strang, the owner of the company. Mr Rice’s claim was that the dismissal was related to his disclosures around breaches of the Coronavirus Job Retention Scheme (known as the Furlough scheme), consisting of employees being required to work despite having been placed on furlough.

The Claimant issued an unfair dismissal public interest disclosure claim relying on s.103A ERA 1996 (automatic unfair dismissal because of a PID) and then subsequently applied to amend the case to add in a detriment claim under s.47B ERA 1996 (detriment on the grounds of a PID) alleging that the dismissal was an act of detriment by the company. 

The claimant argued that there was no requirement under Section 47B of the Employment Rights Act 1996 (Article 70B of the Employment Rights (NI) Order 1996 in Northern Ireland) to bring a parallel claim against the co-worker whereas the employer argued that his amended claim was barred by section 47B(2). 
 

The Employment Tribunal ruled in the Claimant’s favour, granting his amendment. The Respondent appealed the decision to the EAT and the EAT upheld the appeal.

The EAT found the Mr Rice could not bring such a detriment claim against the Company. The EAT held that the additional detriment claim against the employer was barred by section 47B(2) of the ERA 1996 because the detriment was in the form of a dismissal. They found that as Mr Strang was the owner of the business, his acts were the acts of the company. 

The EAT expressly recognised that Osipov allows a claim against an individual co-worker for the detriment of dismissal noting “Timis [v Osipov] is authority, binding on this Tribunal, for the proposition that a claim can be brought against a co-worker under section 47B(1A) even where the co-worker’s act amounts to dismissal”. In the Timis v Osipov case, the non-executive directors were not the owners of the business. The EAT found that the Timis v Osipov scenario only applied where the Claimant could not bring a dismissal-related claim against the individual respondents as an automatic unfair dismissal claim. 

Considering the issue here of whether the claim amounted to dismissal within Part X, the EAT stated, “the amended claim is one which can be, and indeed already has been, advanced as a claim for automatic unfair dismissal under section 103A.” 

In short, the EAT ruled that if the Claimant could bring an automatic unfair dismissal claim, then he could not also bring what was essentially the same claim as a detriment claim.

The EAT reaffirmed the Court of Appeal's decision in Osipov concerning a claimant's ability to claim for detriments that precede dismissal against a co-worker and against the corporate employer for its vicariously liability even if the losses that flow amount to those that flow from dismissal; and that a Claimant can claim for the detriment of dismissal against a co-worker.

The EAT considered whether, in a whistleblowing claim, dismissal could amount to a detriment when it was the act of a co-worker, in this case the company's owner. Having considered Timis and another v Osipov [2018] EWCA Civ 2321, the EAT interpreted the principle in Osipov narrowly, holding that it was only possible to bring a claim for dismissal as a detriment under section 47B of the ERA 1996 if it was not possible to bring a claim for dismissal under section 103A.
 

Why would a Claimant seek to amend their public interest disclosure dismissal claim to include a detriment claim under section 47B ERA 1996?

1. The causation threshold for a detriment claim is much lower than the threshold for a dismissal claim. For a dismissal claim, the protected disclosure must be the sole or principal reason for the dismissal. However, in a detriment claim, the protected disclosure must merely have materially influenced the alleged act or omission of the employer that resulted in detriment to the Claimant.
    
    
2. There are also differences in terms of remedy available for each type of claim. Injury to feelings is available in detriment cases but not dismissal.
    
    
3. The authority of Timis and another v Osipov [2019] ICR 655 CA (“Osipov”) gave the Claimant reason to seek to amend his claim to include detriment by reason of dismissal. In Osipov, a former chief executive had been dismissed at the direction of two directors. The Claimant brought a claim for automatic unfair dismissal and also against the two directors for detriment of dismissal. The Employment Tribunal concluded that the individual directors could be liable for the losses suffered because they flowed from the detriment to which they had subjected the Claimant to and therefore, a claim of detriment by way of dismissal was available against the directors. The Employment Tribunal also held that the claim could not be prevented under the legislation. The Court of Appeal upheld this decision.

Read the full judgment here.

This case is due to be heard by the Court of Appeal granted on 02 July 2025. 
Watch this space for a further case review.