Individual Employees Can Be Liable For A Detriment Suffered By A Whistleblower

In the case of Timis and another v. Osipov [2018] EWCA Civ 2321 the Court of Appeal confirmed that an employee can bring a claim against their co-workers, along with the employer, for being subjected to the detriment of dismissal arising from making a protected disclosure (commonly known as whistleblowing).

Whistleblowing in brief

Under the Employment Rights Act 1996 (ERA) workers have the right not to be subjected to any detriment (including dismissal) on the grounds that they have made a protected disclosure. "Whistleblowing" or "a protected disclosure" are terms used to describe any disclosure of information by a worker which, in the reasonable belief of the worker making the disclosure, is made in the public interest and involves a concern about one or more of the following situations:

criminal offence; breach of any legal obligation; miscarriage of justice; danger to the health or safety of any individual; damage to the environment; and the deliberate concealing of information about any of the above. The disclosure can be made internally (to the worker's employer) or externally to certain prescribed persons (for example, to a regulatory body).

In March 2015, BEIS published Whistleblowing: Guidance for Employers and Code of Practice, which explains an employer's responsibilities with regard to whistleblowers and provides practical guidance on dealing with employees who have made or wish to make a protected disclosure.

Background

Mr Osipov was the CEO of International Petroleum Ltd (the company). During his time as CEO he made a number of disclosures related to corporate governance and compliance with Nigerian law. He was subject to detriment and then dismissed by two non-executive directors of the company, Mr Sage (a non-executive director with managerial functions) and Mr Timis (a non-executive director and the company's largest individual shareholder). Mr Sage acted on instructions from Mr Timis when dismissing Mr Osipov.

Mr Osipov brought a claim to the Employment Tribunal alleging that he had been unfairly dismissed and subjected to detriment for having made protected disclosures. He succeeded with both claims. The Tribunal held that he was unfairly dismissed by the company under section 103A of the ERA. In addition, the Tribunal held that the directors' conduct in relation to Mr Osipov's dismissal amounted to a detriment contrary to section 47B(1A) of the ERA. This meant that Mr Sage and Mr Timis were both held jointly and...