Can an employee who brings a claim for unfair dismissal on the basis of having made protected disclosures also bring a detriment claim where the alleged detriment is the dismissal itself? The Court of Appeal has reluctantly answered that question in the affirmative.
Two employees had brought unfair dismissal claims against their respective employers, claiming that their dismissals were automatically unfair under Section 103A of the Employment Rights Act 1996 because the reason or principal reason for the dismissals was that they had made protected disclosures. They both applied to amend their claims to add claims that they had been subjected to detriments contrary to Section 47B of the Act, including the detriment of dismissal. However, Section 47B(2) states that Section 47B does not apply if the worker is an employee and the detriment amounts to dismissal. The Employment Tribunal reached different decisions on whether the detriment of dismissal could be added to the claims, and both decisions were successfully appealed to the Employment Appeal Tribunal.
In a previous case on this issue, Timis v Osipov, the Court had approached the construction of Section 47B(2) on the basis that it would have expected Parliament to have intended to exclude liability under Section 47B only where the identical remedy was available under Section 103A. The Court had concluded that it was open to an employee to bring a claim under Section 47B(1A) against a co-worker for subjecting them to the detriment of dismissal, i.e. for being a party to the decision to dismiss, and to bring a claim under Section 47B(1B) of vicarious liability for that act against the employer. All that Section 47B(2) excluded was a claim against the employer in respect of its own act of dismissal.
Disagreeing with the analysis in Osipov, the Court found that Parliament had decided that where the detriment in question amounts to dismissal, the employee cannot make a claim under Section 47B. That provision was not ambiguous. The Court noted that Section 47B(2) does not exclude claims by workers who are not employees. In its view, the reason for that was obvious: workers who are not employees cannot claim that they have been unfairly dismissed under Section 103A. The Court rejected the idea that an employee could be dismissed by a co-worker rather than by the employer: by definition, a dismissal is always an act of the employer, and Section 47B(1B) provides that anything done by a co-worker is treated as also done by the employer.
The issue in the present appeals was whether Osipov bound the Court to decide that an employee can add a claim of detriment amounting to dismissal by a co-worker without joining the co-worker to the claim. The Court concluded that if Section 47B(2), as interpreted in Osipov, did not bar reliance on Section 47B(1A), it could not at the same time bar reliance on Section 47B(1B). The Court was thus bound to hold that, contrary to its own construction, Section 47B(2) did not bar the amendments to the employees’ claims. The Court considered it plainly unsatisfactory that the construction of the legislation had now produced conflicting decisions at three levels of court, but observed that that could only be resolved by Parliament or the Supreme Court.
