[2025] EWCA Civ 1466

Ms Treadwell brought a complaint of automatically unfair dismissal based on her whistleblowing under section 103A of the 1996 Act on the basis she had disclosed information within section 43B(1)(c) (information tending to show the health or safety of any individual has been, is being or is likely to be endangered). The Claimant also brought a complaint of automatically unfair dismissal under Section 100(1)(c) of the 1996 Act. She had not been employed for long enough to bring an ordinary claim of unfair dismissal. She applied to amend her claim to include complaints of being subjected to non-dismissal detriments because she had made protected disclosures (pursuant to section 47B of the 1996 Act). The detriments on which she wished to rely included her dismissal. She relied on Osipov.

The ET allowed the application to amend in respect of the non-dismissal detriments on the grounds that it was “a genuine relabelling exercise” (paragraph 2). It refused the application to amend to add Ms Treadwell’s dismissal to the list of detriments.

The ET’s view was that Osipov was a case about the potential liability of individuals in addition to the liability of employers for whistleblowing claims. “It does not displace the statutory definition” (paragraph 3.2). “Insofar as it is relied on, the argument that the decision to dismiss (as an act of detriment) can be separated from the act or effects of the dismissal is an argument without substance. The plain wording of the statute is that detriment must constitute something other than dismissal” (paragraph 3.3).

The employee appealed to the EAT from the refusal of her application to amend to include her dismissal as a detriment. The employer cross-appealed from the granting of permission to amend to include non-dismissal detriment.

The EAT gave an oral judgment. In relation to the employee’s appeal, it relied on paragraph 91(1) of Osipov, which held that:

“It is open to an employee to bring a claim under section 47B(1A) against an individual co-worker for subjecting him or her to the detriment of dismissal, that is for being a party to the decision to dismiss and bring a claim of vicarious liability for that act against the employer under section 47B(1B). All that section 47B(2) excludes is a claim against the employer in respect of its own act of dismissal”.

The EAT referred to the EAT’s decision in Wicked Vision, which had “sought to distinguish Osipov”. It held that it was bound by Osipov and it declined to follow the decision in Wicked Vision. It dismissed the employer’s cross-appeal against the ET’s decision that the amendments were no more than a re-labelling exercise and should be allowed.

The Employment Rights Act 1996

The 1996 Act is the main source of statutory rights for individual employees. Some of its provisions go back as far as the Redundancy Payments Act 1965. It repealed and replaced the first statute which codified such rights, the Employment Protection (Consolidation) Act 1978 (‘the 1978 Act’). All the rights in the 1978 Act were conferred on an employee, defined in section 153(1) (unless the context required otherwise) as “an individual who works under …a contract of employment”.

The 1996 Act was originally divided into fifteen Parts. Twelve substantive Parts dealt with employment particulars (Part I), protection of wages (Part II), guarantee payments (Part III), Sunday working for shop and betting workers (Part IV), protection from suffering detriment in employment (Part V), time off work (Part VI), suspension from work (Part VII), maternity leave (Part VIII), termination of employment (Part IX), unfair dismissal (Part X), redundancy payments (Part XI), and insolvency of employers (Part XII).

The right not to be unfairly dismissed is conferred by section 94, which is in Part X. ‘Dismissal’ is defined in section 95, which is in the same Part. Section 95 is headed ‘Circumstances in which an employee is dismissed’. The definition is wide, and includes the termination of the contract of employment by the employer, with or without notice, and ‘constructive dismissal’, as it has come to be known, when an employee accepts a repudiatory breach of the contract of employment by the employer. Provisions which have been in Part X since its enactment have enabled employees dismissed on grounds listed in Part V to claim, under Part X, that their dismissal was automatically unfair. Those provisions are now in sections 98B-104G. There is no qualifying period for such a claim (unlike the right not to be unfairly dismissed, conferred by section 94). The compensation which is available in the case of such a dismissal is not subject to a cap (section 124(1A)).

Two Parts have been added to the 1996 Act since its enactment: Part IVA, ‘Protected Disclosures’, and Part VIIIA, ‘Flexible Working’. Part IVA was added by the Public Interest Disclosure Act 1998 (‘the 1998 Act’). Many other Chapters and provisions have also been added by amendment since the enactment of the 1996 Act. Section 103A, inserted in Part X by the 1998 Act, enables an employee who has been dismissed on the ground that he made a protected disclosure to claim, under Part X, that his dismissal was automatically unfair.