[2025] EWCA Civ 1466

This is the judgment of the Court, to which all members have contributed.

Introduction

These appeals concern the relationship between the claims which an employee who is a ‘whistleblower’ can bring under Part V and Part X of the Employment Rights Act 1996 (‘the 1996 Act’). In each appeal, the claimant had brought a claim against their employer for unfair dismissal under section 103A of the 1996 Act, which falls within Part X. The question in each case is whether an Employment Tribunal (‘ET’) erred in law in its approach to applications to amend the claims so as to add claims based on the detriment of dismissal against co-workers under section 47B, which falls within Part V.

We will call the first appeal ‘Wicked Vision’ and the second ‘Barton Turns’. In each case, the ET reached a different legal conclusion, and on appeal to the Employment Appeal Tribunal (‘the EAT’) each appeal was allowed, leaving conflicting EAT decisions. Ground 3 of the grounds of appeal in Barton Turns raises a discrete issue about the amendments, which we will consider separately (see paragraphs 94-100, below).

Whether the ET erred in law in its approach to the applications to amend the claims depends on whether or not it was bound by the decision of this court in Timis v Osipov [2018] EWCA Civ 2321; [2019] ICR 655 (‘Osipov’). For the reasons given below, we have decided that the ETs were bound by Osipov and that, subject to any relevant differences on the facts (such as time limits) they should therefore have allowed the applications to amend the claims. Further, for the reasons given below, we have decided that we are ourselves bound by Osipov. Had we been free to depart from that decision, which we are not, we would have done so, as we respectfully disagree with its interpretation of the legislation.

We will start this judgment with a brief summary of the facts in each appeal (section 2 below). We will describe the legislation, and refer to two earlier decisions of this court (section 3). We will next summarise the reasoning in Osipov (section 4). We will then set out our own construction of the legislation and explain why we differ from the interpretation contained in Osipov (section 5). In section 6 we will explain why we are bound by Osipov, and identify the consequences for the present appeals. We deal, finally, in section 7, with the discrete point arising in the Barton Turns appeal.

In Wicked Vision Mr Solomon KC and Mr Milsom and Ms Sandiford represented the appellant employee, Mr Rice, while Ms Motraghi KC and Mr Kohanzad and Ms van den Berg represented the respondent employer. In Barton Turns Mr Bidnell-Edwards represented the appellant employer, while Mr Jupp KC and Mr Canning represented the respondent employee, Ms Treadwell. Permission to appeal was granted in both appeals by Bean LJ, who also permitted Protect, a whistleblowing charity, to intervene by written and oral submissions, which were made by Ms Jolly KC and Ms Masters. We thank counsel for their written and oral submissions. All except Mr Bidnell-Edwards appeared pro bono, and we are especially grateful to them for that.

In broad summary, the parties’ positions on this appeal are these:

The Facts in each appeal