Whistleblowing claims: not just a headache for employers, employees can be found to be liable too

In a decision published this month, the Court of Appeal has found that individuals can be personally liable for whistleblowing detriments amounting to dismissal which they inflict on whistleblowers. In this landmark ruling concerning Mr Osipov (the whistleblower) and Messrs Sage and Timis (the two non-executive directors who were responsible for his dismissal), it was found by the Court that Messrs Sage and Timis were liable for whistleblowing detriments against Mr Osipov.

The case has significant implications for the way that whistleblowing claims are brought in the future. Would-be claimants can now assert dual claims arising out of a potential whistleblowing dismissal case, namely:

(i) a claim for automatic unfair dismissal against their former employer; and
(ii) a claim for whistleblowing detriment resulting in dismissal against the key decision-maker(s) in the dismissal process as named individual respondents.

Given there is a lower threshold for liability for whistleblowing detriment claims than automatic unfair dismissal claims, we predict an influx of these types of detriment claims being brought by well advised claimants, especially where their former employer may be insolvent or financial difficulty. Also expect to see an increase in the number of large injury to feelings awards in successful cases.

In response, employers should ensure that their staff are trained properly on internal whistleblowing procedures, including victimisation, to minimise the risk of whistleblowing detriments from arising and to lay the foundation for asserting a reasonable steps defence in the event that a whistleblowing dismissal occurs. Should you require any assistance in training your staff in this vital area or reviewing your whistleblowing procedures, please do not hesitate to get in touch with Tiggy or Emma or view our training page for more information on our in-house training programmes