Background: 

The claimant was the Head of UK Sales from December 2017 until his dismissal in February 2021.   The reason was redundancy but his argument was that it was related to his disclosures around breaches of the Coronavirus Job Retention Scheme (known as the Furlough scheme).   

He sought to bring a claim for automatic unfair dismissal.  He also sought to amend his claim to make the employer vicariously liable for the acts of a co-worker vis-à-vis detriments as a result of the protected disclosure.  The co-worker was the owner of the company.  

Outcome: 

The issue in this case arose from the amendment to the proceedings.   The claimant argued that there was no requirement under Section 47B of the Employment Rights Act 1996 (Article 70B of the Employment Rights (NI) Order 1996 in Northern Ireland) to bring a parallel claim against the co-worker whereas the employer argued that his amended claim was barred upon that basis.  

The Tribunal stated that the claim could continue without it being brought concurrently against the individual co-worker.  However, the EAT allowed the employer’s appeal.   It held that the question was whether the Judge could decide that there could be a claim based upon the co-workers alleged contravention under Section 47B(1A) but directly against the company/employer under Section 47B(1B).   The EAT did note that the co-worker in question was the owner and the description as a co-worker was a matter of technical distinction. 

The EAT cited that the claimant could have brought the automatic unfair dismissal claim under Section 103 (the section relating to protected disclosures being the reason for dismissal). However, going under the basis of Section 47B caused problems.  From TImis the question is whether detriments amounting to dismissal within the meaning of Part X (of the legislation); in other words, to detriments amounting to unfair dismissal claims necessarily against the employer. Therefore, it was not based upon the failure to bring a concurrent claim against the co-worker but rather showing that it would impact upon the rights within Part X (those relating to unfair dismissal).  As this was not shown the application for amendment should have been refused.    

Practical Guidance for Employers: 

This case demonstrates some of the legislative hurdles that have to be overcome relating to detriment from a protected disclosure.  The main thrust of the arguments centred upon whether a claim was being brought against the co-worker concurrently when in actual fact as stated by the EAT the focus is whether it would impact on the rights under Part X of the 1996 Act relating to unfair dismissal (Part XI in the NI Legislation).  

The full case can be viewed here:
https://assets.publishing.service.gov.uk/media/65e5a7ab7bc329020bb8c1b1/Wicked_Vision_Ltd_v_Mr_I_Rice__2024__EAT_29.pdf