Case law: Fellow employees can be personally liable to another employee in successful whistleblowing claim

Employers considering taking action against a whistleblower should consider whether they may be exposing both themselves and their employees to liability if the whistleblower successfully claims they have been subjected to a detriment because of their whistleblowing, a recent ruling makes clear.

An employee was dismissed on the recommendation of two of his employer's directors after making protected disclosures ('whistleblowing'). The Employment Tribunal found that the employee had been subjected to a detriment because of his whistleblowing, when he was dismissed, so the dismissal was unfair. However, when it came to liability to pay him compensation, the employer had become insolvent and could not pay.

The law sanctions detrimental treatment of whistleblowers both by the employer and also by other employees working for the same employer. The employee therefore claimed compensation against the two directors personally.

The Court of Appeal ruled that the directors had, as fellow employees, subjected the employee to a detriment and were therefore jointly and severally liable, with the employer, to compensate him for unfair dismissal.

Operative date

• Now

Recommendation

• Employers considering taking action against whistleblowers should carefully consider whether they may be exposing both themselves and any employees to liability, if the whistleblower successfully claims they have been subjected to a detriment because of their whistleblowing

Case ref: Timis & Anor v Osipov & Anor [2018] EWCA Civ 2321