Over the last few years we have seen protection for whistleblowers come to the forefront of employment law. There has been scrutiny over the NHS’s treatment of whistleblowers, criticism of settlement agreement confidentiality clauses and confirmation from the FCA that victimisation of a whistleblower could jeopardise someone's 'fit and proper' status.
The whistleblower legislation itself has always distinguished between detriment against a whistleblower (where it is possible to claim injury to feelings) and a dismissal, where the award is for loss of earnings. It is not possible for a dismissed worker to pursue their employer for a detriment, and subsequent injury to feelings, if the only detriment is the act of dismissal itself. This had led to some rather creative claims in which, for example, workers have stated that the detriment is not the act of dismissal, but the contents of a dismissal letter, etc.
Likewise the Employment Rights Act allows a worker to claim victimisation against a fellow worker who has acted against them because they have blown the whistle but there is no similar provision allowing a claim against a fellow worker where the act of detriment is a dismissal.
All rather technical? The Court of Appeal thinks so. It has now fundamentally changed and simplified the position:
- It is artificial to distinguish too closely the detrimental actions and decisions that led to someone’s dismissal and the actual dismissal itself.
- If a fellow worker victimises a whistleblower so as to lead to their dismissal, then that fellow worker can be personally liable for the losses arising.
In a case before the Court of Appeal (Timis and Sage v Osipov) two directors decided upon the dismissal of an executive who had blown the whistle about the company's activity in Niger. The employer company became insolvent and the two individuals are now jointly liable for the detrimental decisions they made and damages of approximately £2 million.
Alongside whistleblowing the other key area where firms and individual employees can be hit hard for their mistakes is discrimination. Gender pay gap reporting and the #MeToo campaign against harassment are changing the way sexual equality is viewed in the workplace, and changing it for the better.