Whistleblowing dismissal as a detriment: where does the law stand after the Court of Appeal’s judgment in Rice v Wicked Vision [2025] EWCA Civ 1446?

24/11/2025

By David Ion

Can an employee claim that their dismissal was a detriment motivated by their protected disclosure under s.47B Employment Rights Act 1996 (“ERA”)? That was the question the Court of Appeal (“CoA”) grappled with in the combined appeals of Rice v Wicked Vision Ltd and Barton Turns Developments Ltd v Treadwell [2025] EWCA Civ 1466.

The answer: yes … for now. Giving lead judgment, Laing LJ held that, on the proper construction of Parts V and X of the ERA, dismissal was barred from being a detriment in a whistleblowing detriment claim under s.47B by the exception in s.47B(2). However, the CoA was bound to rule the opposite by the decision in Timis v Osipov [2018] EWCA Civ 2321, from which they would otherwise have departed [4].

Employees bringing claims alleging they were dismissed because of a protected disclosure should therefore continue to plead both whistleblowing detriment under Part V, s.47B ERA and, where possible, unfair dismissal under Part X, s.103A ERA.

Background to the Appeal

In both Wicked Vision and Barton Turns the claimants allege they were dismissed because of protected disclosures. Both claimants originally pleaded only unfair dismissal under Part X ERA, relying on the automatically unfair reason for dismissal in s.103A. Both subsequently applied to add claims against their employers under s.47B(2A) as vicariously liable for the detriment of dismissal inflicted on them by co-workers.

In Wicked Vision, the ET allowed Mr Rice’s application to amend. The EAT overturned this decision on appeal. Mr Rice appealed to the CoA. In Barton Turns, Ms Treadwell’s application was denied by the ET, but the Scottish EAT allowed her appeal. Barton Turns appealed to the CoA.

The Legislation

Section 47B, in part V of ERA, creates the right of workers (including employees) not to be subjected to detriments by employers on the ground that they make a protected disclosure (s.47B(1)). It was inserted into ERA by the Public Interest Disclosure Act 1998. Section 47B was amended by the Enterprise and Regulatory Reform Act 2013, extending protection to detriments from co-workers (s.47B(1A)) for which employers are held vicariously liable (s.47B(1B)).

Section 103A, in Part X of ERA, establishes that employees are unfairly dismissed if the reason or principal reason for the dismissal is that the employee made a protected disclosure.

If an employee believes they have been dismissed for making a protected disclosure, there are two reasons why it is better to claim they have been subjected to a detriment of dismissal contrary to s.47B, rather than unfairly dismissed under s.103A:

i. Under s.47B, the protected disclosure must only be a material reason for the detriment, whereas under s.103A it must be the reason or principal reason for the dismissal (“the causation benefit”); and

ii. If successful, under s.47B a claimant can be compensated for injury to feelings. Under s.103A there is no such award available (“the compensation benefit”).

However, s.47B(2) creates the following exception:

(2) This section does not apply where—

• (a) the worker is an employee, and
• (b) the detriment in question amounts to dismissal (within the meaning of Part X).

On its face, this seems to preclude employees from claiming dismissal as a detriment. But the CoA’s decision in Osipov means that it is not so simple. For now, some important things to note about this exception:

• i. It only applies to employees, meaning workers can always rely on dismissal as a detriment under s.47B (N.B. workers who are not employees cannot claim unfair dismissal under Part X of ERA);
• ii. Section 47B(2) was part of the original s.47B as it was created in 1998 and was unchanged when s.47B was amended in 2013; and
• iii. The other substantive provisions in Part V protecting workers from detriments all contain an exception identical or very similar to s.47B(2) and have done since 1996.

The position according to Osipov

Osipov remains the law. Underhill LJ, giving lead judgment in Osipov, laid out the effect of the judgment at paragraph 91 (emphasis added):

“91. The foregoing analysis has been regrettably dense, but I can summarise my essential conclusions as follows:

(1) 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.

(2) As regards a claim based on a distinct prior detrimental act done by a co-worker which results in the claimant’s dismissal, section 47B(2) does not preclude recovery in respect of losses flowing from the dismissal, though the usual rules about remoteness and the quantification of such losses will apply.”

In Wicked Vision, Laing LJ held at [91] that, although only the first clause of the first sentence of 91(1) describes the situation in Osipov, in which the claimant’s ex-employer was insolvent and so only the claim against individual directors was relevant, the entirety of 91(1) flows inevitably from the reasoning in Osipov and so was not obiter, as the EAT had held in Wicked Vision.

The reasoning in Osipov has been rigorously interrogated elsewhere, but for this article it is sufficient to lay out the core elements Laing LJ described in Wicked Vision at [53]-[65]:

• If s.47B(2) prevented a claimant from claiming against a co-worker for the detriment of dismissal, that would produce an incoherent and unsatisfactory result (Osipov at [68]; Wicked Vision at [59]);
• Parliament’s decision to allocate different rights to Parts V and X was not so significant, and the policy behind it was likely only to prevent a claimant from claiming under Part V when the identical right was available under Part X (Osipov at [70]; Wicked Vision at [60]);
• The difference in the causation test and position on injury to feelings were “particular wrinkles” in the statutory scheme, and were likely overlooked, inadvertent, or not considered significant by the draftsmen (Osipov at [72]-[74]; Wicked Vision at [61]);
• Although this was not an “elegant result”, the resulting awkwardnesses are insufficient to justify a construction that would produce much more serious anomalies and seems contrary to the overall policy of these provisions (Osipov at [78]; Wicked Vision at [63]).

The CoA’s preferred construction in Wicked Vision

Laing LJ entirely disagreed with Underhill LJ’s reading of s.47B(2).

She said that it was significant that the exclusion in s.47B(2) is repeated across the substantive provisions of Part V of the ERA. It has been a feature of the scheme since its enactment and was not changed by the amendments to Part V in 1998 or 2013 [67], which was an important principle in the CoA’s reasoning in Osipov. The formula is Parliament’s choice about the remedial scheme available to employees who suffer a detriment [68].

“Amounts to a dismissal (within the meaning of Part X)” means that employees are barred from bringing a claim about a detriment which, in substance, is a complaint about a dismissal, dismissal bearing the same meaning as under s.95 ERA [68]. The regimes in Parts V and X are “parallel and complementary”, and Parliament unambiguously decided that the extent of employees’ protection from dismissal should be a claim under part X [68].

According to Laing LJ, whether the detriment amounts, in substance, to a dismissal depends on three questions [69]:

• Is the detriment which is the subject of the complaint in substance a dismissal?
• Is the loss for which compensation is sought in substance a loss consequential on the dismissal, or compensation for a loss suffered before the dismissal?
• Did the employer dismiss the employee?

Interestingly, the second question apparently means that even claims for detriments that are not in themselves dismissals but result in dismissal (as envisaged in Osipov at [91(2)]) will be caught by the exception in s.47B(2).

A feature of the scheme is that the exclusion does not apply to workers. This is simply because they cannot bring an unfair dismissal claim under Part X (para 70).

The exclusion applies to the whole of s.47B – the draftsmen did not choose to disapply the exclusion from any part as they did in other sections in Part V [71]. The idea that the exception does not apply to claims against co-workers as it only applies to dismissal by employers is wrong for three reasons:

• A dismissal is always an act of the employer. The fact that it is communicated by a co-worker is purely because the employer must act through a human being [75];
• In any event, to distinguish between claims against co-workers and employers is circular as employers are liable for the actions of co-workers under s.47(1B);
• The question is what the employer or co-worker is liable for – under s.47B(2) that is whether the act “amounts to” a dismissal. If it does, the employer could be liable for it under part X and the employee cannot make a claim under part V [77].

Accordingly, Laing LJs’ view was that the Court of Appeal and EAT in Osipov were wrong:

• The legislation can be interpreted on a straightforward reading of the words in the context of the statutory scheme. A remedial or purposive interpretation is not required [79];
• The suggestion that dismissal by a co-worker is a distinct cause of action to dismissal by the employer is wrong for the reasons given at [74]-[77];
• There are no grounds to say that the draftsman might have overlooked something or used words that do not accord with the general purpose [81]; and
• The fact that the causation and compensation benefits of s.47B do not apply to Part X, and that employees cannot recover for dismissal against insolvent employers, are all consequences of deliberate choices by Parliament [82]-[83].

But ultimately, Osipov remains

Ultimately, the CoA were bound by the rule of precedent to follow Osipov [91]. Their interpretation of s.47B(2), therefore should not be followed.

Discussion

In some ways, the headline from this judgment is that there is no headline. Osipov remains unchanged, and employees can rely on it to bring dismissal claims against employers under s.47(1B), not just co-workers under s.47(1A).

However, this judgment is a warning that the reasoning in Osipov is under intense scrutiny and is liable to change. The CoA rarely leaves such an open door for a judgment to be appealed, and this will very likely go to the Supreme Court.

In the Supreme Court, Laing LJ’s statutory analysis in Wicked Vision will likely be persuasive: it fits more neatly with the statutory language, it does not rely on the Courts deciding Parliament overlooked practicalities when enacting and amending s.47B, and it does not leave s.103A almost totally redundant. One twist is that Lady Simler, now a Supreme Court justice, decided Osipov in the EAT and her interpretation of s.47B(2) was followed by Underhill LJ in the CoA. Her expertise makes her a likely candidate for the bench if Wicked Vision goes to the Supreme Court and her decision will be interesting.

Of course, the Supreme Court is not the only place from which change could come, and Parliament may take an interest in this question. If Laing LJ’s analysis of the ERA is not only legally attractive but also correct, then the serious anomalies in policy that led to the Osipov interpretation could well be revived. The two most pressing are those identified by the Underhill LJ in Osipov at [68]:

• Co-workers would be liable for acts short of those which lead to dismissal, but not for the dismissal itself; and
• Consequently, workers would have greater protection than employees when they are dismissed for whistleblowing.

The current Parliament is keen to enact root and branch reform of employment law, and this seems an obvious area where the current legislation is confused and, arguably, deficient. Parliament could resolve the above anomalies by bringing protection from detriments motivated by protected disclosures in line with protection against discrimination and victimisation under the Equality Act 2010.

This would essentially require the removal of both the exception in s.47B(2) and separate cause of action for automatically unfair dismissal in s.103A. All claims for whistleblowing detriment, whether they involve dismissal or not, would then fall under s.47B with the associated benefits. Such an amendment would unambiguously bring the legislation in line with the Osipov interpretation.

Notes for Practitioners

The advice for practitioners representing employees who allege they were dismissed due to a protected disclosure is:

• Plead both detriment under s.47B and unfair dismissal under s.103A. That means your client will benefit from the less stringent causation test and more generous compensation under s.47B, but can fall back on s.103A if the law changes during their claim.
• The claim is against the employer under s.47B(1B) and there is currently no need to add the co-workers under s.47B(1A) as named respondents (see the judgment at [90]). This no longer seems to be an active dispute between the parties in this appeal, but it might be prudent to add the individual respondents in case the law changes on appeal.

If you are representing a worker who has been dismissed, there is no doubt that you can bring a claim under s.47B for the detriment of dismissal.

For claimants and respondents, watch out for slightly different rules around time periods: for a detriment claim under s.47B the three months runs from the date of the detriment (i.e., the date the dismissal decision is made), whereas for unfair dismissal claims under Part X the three months starts from the effective date of termination. These dates will likely be different if the claimant has unsuccessfully appealed the original decision.

For respondents, there is little more advice to give, other than watch out for any appeal of Wicked Vision, which may render a whistleblowing detriment claim brought against you void.