[2025] EWCA Civ 1466

The employer is owned by Mr Strang. Mr Rice was employed as Head of UK Sales from December 2019 until February 2021 when he was dismissed on the grounds of redundancy. His case was that Mr Strang decided to dismiss him because he had made protected disclosures. He claimed that his dismissal was unfair under section 94 of the 1996 Act and that it was automatically unfair under section 103A, because the reason or principal reason for his dismissal was a protected disclosure.

Just before a case management hearing in October 2021, Mr Rice’s representatives indicated a wish to amend the claim to include complaints that he had been subjected to detriments, contrary to section 47B of the 1996 Act. There were four detriments, some before his dismissal, but including his actual dismissal by Mr Strang.

At a further case management hearing in July 2022 Mr Rice applied to amend his claim by adding a detriment in these terms:

“Dismissing the claimant. (This is a complaint that Mr Strang, a worker for the respondent, subjected to the clamant to the detriment of dismissal contrary to section 47B(1A) of the ERA, for which the respondent is liable under section 47B(1B). This complaint is available to an employee notwithstanding the provisions of subsection (2).)”

Mr Rice did not ask to add Mr Strang as a respondent to his claim. The ET granted the application to amend, leaving the question of whether it had been made too late to a further hearing. It considered that section 47B did not make a claim for a co-worker’s detriment depend on whether the co-worker had been joined, because the employer was in any event vicariously liable for that detriment.

On appeal to the EAT, the employer argued that section 47B(2) barred a new claim in particular because such a claim could not be made without a concurrent claim against Mr Strang, and no such amendment had been applied for. It submitted that a claim against the co-worker was a necessary pre-condition for a claim based on the employer’s vicarious liability for the co-worker’s detriment. The employee submitted that section 47B imposed no such requirement, and there was no suggestion to that effect in Osipov.

The EAT considered that this was an issue of statutory construction. Osipov was binding authority for the proposition that a claim can be brought against a co-worker under section 47B(1A) even when the co-worker’s act amounted to a dismissal (paragraph 25). At first sight, that “sits uneasily” with 47B(2). The EAT then asked whether Osipov went any further than that.

The EAT noted that a detriment claim can now be brought against a co-worker, and that it could also be brought against the employer on the basis of vicarious liability. Section 47B(2) continued to provide that the section as a whole does not apply to a detriment which amounts to a dismissal (within Part X). The question was whether section 47B can nevertheless found a claim against an employer arising from a co-worker’s act amounting to a dismissal.

The EAT said in paragraph 42 that the position of the employer was not part of the claim, so that, while Osipov contemplated that vicarious liability of the employer could or would follow from a co-worker’s liability, the position of the employer was not in issue and was not part of the ratio. In paragraph 43, the EAT said that the present case was different. There was no claim against Mr Strang. The ET had to decide whether there could be a claim against Mr Strang under section 47B(1A) but directed solely at the employer under section 47B(1B).

The EAT observed in paragraph 47 that it would be odd if Parliament had barred a claim against an employer for a detriment ‘which amounts to dismissal’ but allowed such a claim to be made under section 47B(1B) in addition to or instead of a claim under section 103A. In virtually every case a dismissal would be communicated to an employee by another person.

The employer company was the only respondent to the claim (whether amended or unamended). Mr Strang owned the company; his acts in the course of business were the acts of the company. To describe him as a co-worker, not the employer, or to say that Mr Rice was dismissed by Mr Strang rather than the employer, or to say that Mr Rice was dismissed by Mr Strang instead of or as well as by the company, was to draw a purely technical distinction. There being no real factual distinction between the company and Mr Strang, there was also no realistic prospect of a reasonable steps defence (paragraph 48).

The claim was one which could be, and indeed had already been, advanced as a claim for automatically unfair dismissal under section 103A. It was not a case like Osipov in which a claimant wished to advance a claim which could not be advanced under section 103A (paragraph 49). The application of section 47B did not depend on the outcome of the claim. It depended on whether the alleged detriment amounted to dismissal (within Part X) (paragraph 50). The EAT concluded that section 47B(2) did not apply to the amended claim and that the decision to give permission to amend was wrong.

In paragraph 53 the EAT made clear that its decision was not based on the absence of any concurrent claim against Mr Strang. The EAT considered that the ET had been right to hold that that was not the critical factor.

In paragraph 54 the EAT said that applying section 47B (as interpreted in Osipov), “all that was necessary was to scrutinise the proposed claim against the employer and to ask whether it was based on… “detriments amounting to dismissal within the meaning of Part X; in other words to detriments amounting to unfair dismissal claims necessarily against the employer”. That question in this case could only receive an affirmative answer.”

The EAT accordingly allowed the employer’s appeal.