Unfair dismissal; automatically unfair reasons; burden of proof; qualifying service. Where an employee lacks the qualifying service for ordinary unfair dismissal and claims dismissal for an automatically unfair reason, the Court of Appeal held by a majority that the legal burden lies on the employee to prove, on the balance of probabilities, that the reason for dismissal was the automatically unfair one. The reasoning is that a person relying on an exception to statutory provisions must show it applies to them. Lord Denning MR added that tribunals should weigh the evidence according to the proof it was in the power of each side to produce or contradict, so once the employee has produced prima facie evidence of the prohibited reason it is for the employer to produce evidence to the contrary. Decided on trade union grounds under what is now s.152 TULR(C)A 1992; applied to protected disclosures under s.103A ERA 1996 in Ross v Eddie Stobart Ltd EAT 0068/13. [Summary checked against a practitioner text, not the judgment.]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Whistleblowing; good faith; (Historic) disclosures made with an ulterior motive (personal antagonism) were not protected. [Summary checked against a practitioner text, not the judgment.]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Whistleblowing; a worker can make a protected disclosure even if their belief in the wrongdoing is mistaken, provided it is reasonable.
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Whistleblowing; unfair dismissal; burden of proof as to the reason for dismissal. The legal burden of proving the reason for dismissal rests on the employer throughout, and it is for the employer to show that the reason was not the protected disclosure. The employee bears only an evidential burden: it is enough for her to challenge the employer's evidence and to produce some evidence of a different reason. The tribunal is not obliged to accept the reason advanced by either party, and rejecting the employer's reason does not compel a finding that the disclosure was the reason.
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Whistleblowing; causation; the disclosure need only 'materially influence' the employer's negative treatment (s.47B).
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Whistleblowing; public interest; a disclosure affecting a small group (e.g. 100 managers) satisfies the 'public interest' test.
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Whistleblowing; detriment; tainted information; composite approach. Choudhury J held that CLFIS (UK) Ltd v Reynolds applies to detriment claims under s.47B ERA 1996: s.47B(1A)-(1D) creates a similar scheme of individual and vicarious liability, so the knowledge and motivation of another should not be attributed to an innocent decision-maker [89]. A claimant relying on another's motivation must use the separate acts approach [87], or allege joint decision-making [90]. Royal Mail Group v Jhuti did not assist: it was a dismissal case, where liability lies only with the employer [93]. Good faith is no longer a separate requirement for liability, though the tribunal's reference to it was academic [72]-[73]. Not mentioning s.48(2) was no error where the tribunal made positive findings on why the treatment occurred [80]. A claimant who delayed some three and a half months and worked on without reserving his rights had affirmed any breach [129]. All grounds failed [134].
Whistleblowing; s.47B(2) ERA 1996. An employee may sue a co-worker under s.47B(1A) for the detriment of dismissal, meaning for being a party to the decision to dismiss, and the employer under s.47B(1B) for that act; s.47B(2) excludes only a claim against the employer for its own act of dismissal (Underhill LJ at [91]). Two directors, Mr Timis (the largest shareholder), who decided on the CEO's dismissal, and Mr Sage (the chairman), who agreed to it and sent the email, were held by the tribunal jointly and severally liable with the company [1]; their appeal was dismissed. Followed with reluctance in Rice v Wicked Vision Ltd [2025] EWCA Civ 1466; whether Osipov was rightly decided is before the Supreme Court (UKSC 2026/0005, heard 21 May 2026).
“It is open to an employee to bring a claim under section 47B(1A) against an individual co-worker for subjecting him or her to the detriment of dismissal, i.e. for being a party to the decision to dismiss; and to bring a claim of vicarious liability for that act against the employer under section 47B(1B). All that section 47B(2) excludes is a claim against the employer in respect of its own act of dismissal.”Underhill LJ, at [91]
Doubted by Rice v Wicked Vision Ltd [2025] EWCA Civ 1466 (2025-11-14)
The Court of Appeal held itself bound by Osipov but said it would have departed from it if free to do so.
Under review Wicked Vision Ltd v Rice UKSC/2026/0005 (heard 21 May 2026)
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Whistleblowing; unfair dismissal; if a manager determines the decision to dismiss by hiding the truth (manipulation), that reason is attributed to the employer.
“If a person in the hierarchy of responsibility above the employee (here Mr Widmer as Ms Jhuti’s line manager) determines that, for reason A (here the making of protected disclosures), the employee should be dismissed but that reason A should be hidden behind an invented reason B which the decision-maker adopts (here inadequate performance), it is the court’s duty to penetrate through the invention rather than to allow it also to infect its own determination.”Lord Wilson, at [60]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Whistleblowing; separability; a dismissal can be for the manner of the disclosure (unreasonable conduct/behavior) rather than the disclosure itself.
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Whistleblowing; compensation; contracting out. The EAT upheld a remedy award of GBP 1,626,452.07 made jointly against the employer and an individual respondent [2], [103]. The respondents argued that contractual clauses capped compensation at GBP 270,000 [22]. Correctly construed, the clauses did not purport to limit a tribunal award [45]. Had they done so, relying on them would be contrary to s.203 ERA 1996: it could not be just and equitable to produce the same effect as limiting a statutory provision, and relative bargaining power is irrelevant [49], [51]-[52]. The EAT recorded misgivings about Courage Take Home Trade Ltd v Keys [35]. On the ACAS uplift, the grievance provisions of the Code require a written grievance [92], but an earlier written grievance sufficed where closely related concerns were then raised orally [96]. A s.207A TULRCA 1992 uplift may be applied to an award against an individual responsible for the employer's failure to follow the Code [106], [109].
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Whistleblowing; s.47B(2) exclusion; dismissal as detriment. The EAT (Bourne J, [2024] EAT 29) held an employee could not amend to claim against the employer under s.47B(1A)/(1B) for the detriment of dismissal effected by a co-worker: s.47B(2) routes dismissal complaints to s.103A. Conflicted with Treadwell v Barton Turns and was reversed by the Court of Appeal in Rice v Wicked Vision [2025] EWCA Civ 1466 (bound by Timis v Osipov).
Reversed by Rice v Wicked Vision Ltd [2025] EWCA Civ 1466 (2025-11-14)
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Whistleblowing; confidentiality; being a whistleblower does not justify misappropriation or retention of employer's documents post-termination.
Whistleblowing; detriment; tainted information; causation. A consultant's s.47B ERA 1996 claim failed because the tribunal found that her one protected disclosure did not materially influence the decisions to exclude, investigate and warn her [21], [65]-[66]. Bourne J dismissed the appeal. He declined to depart from Malik v Cenkos, which held that importing another's knowledge and motivation to the decision-maker is not permissible [26], [82]. Malik was not per incuriam and Jhuti did not show it to be manifestly wrong: Jhuti turned on the meaning and purpose of s.103A and does not change the interpretation of s.47B [82]. Even if Jhuti applied, the claimant could not show that a more senior employee decided she should be disciplined for her disclosures and hid that behind an invented reason [84]. The causation findings could be overturned only for perversity and were logically reasoned [74]-[75]. They made the challenges about other disclosures academic [87].
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Whistleblowing detriment; victimisation; causation; organisational culture. A tribunal found that the employer, though neither individual manager sued, subjected the claimant to detriments in a 2018 disciplinary process because of protected disclosures made in 2012 and tribunal claims brought in 2013 [37], [118]. The EAT dismissed the appeal [167]. Whether a detriment was done on the ground of a disclosure is always a factual determination for the tribunal [106]. The tribunal was entitled to find causation through a collective management memory prejudicial to the claimant, perpetuated by an HR adviser who influenced an investigator with no direct knowledge of the history [118]-[120]. Malik v Cenkos and William v Lewisham did not bar that analysis [156]. The influence was attributed to the employer itself: liability was direct, not vicarious, and the separate acts analysis did not apply [162]. Relying on management lore was not procedurally unfair: it fell within the pleaded case and list of issues [90].
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Whistleblowing; charity trustees; discussed whether trustees or volunteers can have 'worker' status for whistleblowing protection.
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Whistleblowing; s.47B(2) ERA 1996; dismissal as detriment. The Court of Appeal held itself bound by Timis v Osipov: an employee who claims unfair dismissal under s.103A may also claim against the employer under s.47B(1B) for a co-worker's s.47B(1A) detriment of dismissal, and need not join the co-worker [89]-[90]. A direct claim against the employer under s.47B(1) for its own act of dismissal remains barred. Free to decide, the court would have departed from Osipov [4], reading s.47B(2) as excluding any detriment compensable under Part X [44]-[45]; it did not find the different causation tests or the absence of injury to feelings under Part X anomalous [81]. Heard with Barton Turns Developments Ltd v Treadwell. The Supreme Court heard the employer's appeal on 21 May 2026 (UKSC 2026/0005); judgment awaited.
“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.”Peter Jackson LJ, Coulson LJ, Elisabeth Laing LJ, at [4]
Appeal pending Wicked Vision Ltd v Rice UKSC/2026/0005 (heard 21 May 2026)
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Whistleblowing; heard with Rice v Wicked Vision Ltd. The employer's appeal was dismissed: bound by Timis v Osipov, the Court of Appeal held that s.47B(2) ERA 1996 did not bar an amendment claiming against the employer under s.47B(1B) for a co-worker's detriment of dismissal, though it would have held otherwise if free to [4], [101]. The Supreme Court heard the appeal in Rice on 21 May 2026; judgment awaited.
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Whistleblowing; (1) composite liability under s.47B(1A) is impermissible, an innocent decision-maker cannot be held personally liable for the detriment of dismissal by attributing to them the tainted motivation of a manipulating colleague; (2) Jhuti does not apply to s.47B(1A) personal co-worker liability claims; (3) 'dismissed' under s.47B(1A) means the act of the person who actually dismissed, not action contributing to dismissal by another; (4) s.103A complaint remitted to tribunal to properly apply the Jhuti manipulation analysis.
“the Tribunal erred in law by applying Jhuti to the complaints made under sub-sections 47B(1A) and (1B). It follows that it erred in finding the first and third respondents responsible liable for those complaints.”Lord Fairley (President), at [52]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Whistleblowing; s.43D ERA; disclosure to former solicitor; lawful excuse to breach of confidence. The High Court held that (1) the whistleblowing regime provides a public interest defence to breach of confidence at common law, adopting Racing Partnership's lawful excuse analysis; (2) s.43D protection for disclosures made 'in the course of obtaining legal advice' is not restricted to qualified lawyers but extends to any person whom the worker believes is competent to provide legal advice; (3) protection turns on timing of the worker's reasonable belief: initial disclosure to the same recipient before belief formed was not protected, but subsequent disclosure after advice causing belief was protected; (4) disclosure to a non-legal third party was not protected where not made for the purpose of obtaining legal advice.
“where disclosure is made in circumstances that fall within the definition of a "qualifying disclosure" for the whistleblowing regime then this can constitute "lawful excuse" for what would otherwise be "the unauthorised use of information" … I consider that this is a correct statement of law.”Mr Justice Sheldon, at [155]
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.