Whether a dismissal can also be pleaded as a detriment sounds like a seminar question. The answer decides whether a whistleblower can recover injury to feelings, and whether the disclosure must be the principal reason for the dismissal or only a material influence on it.
Update, September 2026: the Supreme Court heard the employer's appeal on 21 May 2026 (UKSC 2026/0005) and has reserved judgment. The questions before it include whether Timis v Osipov was rightly decided. Until judgment, Osipov binds every tribunal.
In November 2025 the Court of Appeal decided Rice v Wicked Vision Ltd [2025] EWCA Civ 1466, heard with Barton Turns Developments Ltd v Treadwell. It held itself bound by its own decision in Timis v Osipov, and said in terms that it would otherwise have departed from it: "Had we been free to depart from that decision, which we are not, we would have done so, as we respectfully disagree with its interpretation of the legislation" [4].
The statutory scheme
Section 47B(1) ERA 1996 protects a worker from detriment by the employer on the ground of a protected disclosure. Section 47B(2) disapplies that protection where the worker is an employee and the detriment amounts to dismissal within Part X: the employee's remedy is automatic unfair dismissal under s.103A. Since 2013, s.47B(1A) has also made a co-worker personally liable for subjecting the worker to detriment, and s.47B(1B) treats that act as the employer's.
The two routes differ in two ways that affect remedy. Injury to feelings is recoverable for detriment under Part V but not for unfair dismissal under Part X. And causation differs: a detriment claim succeeds if the disclosure materially influenced the treatment (Fecitt v NHS Manchester), while s.103A requires it to be the reason or principal reason for the dismissal.
Timis v Osipov
In Timis v Osipov [2018] EWCA Civ 2321; [2019] ICR 655 the claimant was the CEO of IPL. Mr Timis, a director and its largest shareholder, decided with the agreement of Mr Sage, its chairman, that he should be dismissed, and both were held personally liable for the dismissal. Underhill LJ summarised the position: an employee may sue a co-worker under s.47B(1A) "for being a party to the decision to dismiss", and the employer under s.47B(1B); "All that section 47B(2) excludes is a claim against the employer in respect of its own act of dismissal" [91].
The facts in Rice
Mr Rice was Head of UK Sales at Wicked Vision Ltd, a company owned by Mr Strang. He was dismissed in February 2021, for redundancy on the company's case. He alleged that Mr Strang dismissed him because he had disclosed breaches of the furlough scheme, with staff required to work while furloughed (Wicked Vision Ltd v Rice [2024] EAT 29, [2]). He claimed ordinary and automatically unfair dismissal.
He then applied to add a complaint that Mr Strang, as a worker of the company, had subjected him to the detriment of dismissal under s.47B(1A), with the company liable under s.47B(1B). He did not join Mr Strang as a respondent [10]. The employment tribunal allowed the amendment; the EAT (Bourne J) held it barred by s.47B(2) and reversed it.
The decision
The Court of Appeal allowed Mr Rice's appeal and dismissed the employer's appeal in Barton Turns [101]. If s.47B(2), as construed in Osipov, does not bar reliance on s.47B(1A), "it cannot, at the same time, bar reliance on section 47B(1B)" [89]. Whether the co-worker is joined makes no difference [90].
A direct claim against the employer under s.47B(1) for its own act of dismissal remains barred. What survives is a claim routed through the act of a co-worker. The EAT had thought that result odd, since a dismissal is almost always communicated by another person [15].
What the court would have held
"The core of the reasoning in Osipov," the court said, "is that section 47B(2) does not mean what it says" [88]. It would have adopted Chadwick LJ's reading in Melia v Magna Kansei Ltd: s.47B(2) excludes detriment that can be compensated under the unfair dismissal provisions [44]–[45].
It rejected the argument that reading s.47B(2) as written would be incoherent. The different causation tests, and the availability of injury to feelings under Part V but not Part X, were "not anomalous" [81]. The court closed on the state of the authorities rather than the statute: it was "plainly unsatisfactory" that the construction had produced conflicting decisions at three levels of court, a conflict that "can only be resolved by the Supreme Court or by amendment to the legislation" [101].
Practical points
- Until the Supreme Court rules, a claimant may plead s.103A against the employer and a s.47B(1A)/(1B) claim for the same dismissal, without joining the individual.
- Directors and managers who take the decision to dismiss remain personally exposed under s.47B(1A) when joined. The Supreme Court is asked whether Osipov was rightly decided, so that exposure is also in issue.
- Respondents facing the dual claim should plead the s.47B(2) point now, so that it is preserved if the Supreme Court adopts the construction the Court of Appeal preferred.
- An amendment to add the detriment claim still faces the ordinary discretion, including time limits [4].
Alex acts in disputes like this one for claimants and respondents, instructed by solicitors or by direct access. How to instruct him or email the clerks.