Case update: whistleblowing detriment and dismissal – Court of Appeal clarifies the law

Blog

10.12.2025

The Court of Appeal has recently confirmed in the joint appeals of Rice v Wicked Vision Ltd and Barton Turns Developments Ltd v Treadwell (with Protect intervening) that an employee who claims they were dismissed for whistleblowing can also bring a detriment claim for the dismissal itself. Although the Court indicated it would have preferred to have found that the law does not permit dismissal as a detriment, it felt bound by the previous case law on this point and as such allowed such claims to proceed.
This ruling may sound technical, but its practical impact is clear: employers now face a heightened risk of dual claims arising from the same set of facts. To understand why this matters, let’s take a closer look at the background and the Court’s reasoning.

A reminder of whistleblowing

Whistleblowing occurs when an employee reports suspected wrongdoing in the workplace that they reasonably believe is in the public interest. If the disclosure meets the statutory criteria under the Employment Rights Act 1996 (ERA) and the Public Interest Disclosure Act 1998, it becomes a 'protected disclosure'. To qualify, the disclosure must contain information, relate to one of six specified types of wrongdoing (criminal offence, breach of legal obligation, danger to health and safety, environmental damage, miscarriage of justice, or deliberate concealment), and be made to an appropriate person or body.

Employees who make protected disclosures are legally safeguarded against two key forms of retaliation:

• Protection from detriment (Section 47B ERA): covering harmful treatment short of dismissal, such as demotion, bullying, or loss of opportunities etc. This protection also extends to workers (not just employees).

• Automatic unfair dismissal (Section 103A ERA): where the main reason for dismissal is the protected disclosure (applies to employees only).

These provisions are designed to encourage employees to speak up about wrongdoing without fear of reprisal.

The previous position of the courts

Before the Court of Appeal's recent decision, the leading case in this area was Timis and Anor v Osipov. This decided that an employee may bring twin-track whistleblowing claims arising from the same dismissal: i) an automatic unfair dismissal claim against their employer under s.103A, and ii) a detriment claim under s.47B. The detriment claim could be brought against a co-worker for subjecting them to the detriment of dismissal (ie being party to the decision to dismiss), and at the same time against their employer for being vicariously liable for the co-worker's act. The only limitation was that the employee could not bring a detriment claim directly against the employer for the employer’s own act of dismissal.

The Court of Appeal decision in Wicked Vision

In Wicked Vision, the Court of Appeal has reaffirmed that employees can, for now, bring claims for both automatic unfair dismissal under s.103A and for detriment under s.47B (via the co-worker/vicarious liability route), even where the detriment is the dismissal itself. The Court of Appeal said that, if it had been free to choose, it would have taken the view that dismissal should not be treated as a form of detrimental treatment under s47B. However, because it was bound by the earlier decision in Osipov, it had to allow employees to continue to bring both types of claim – one for dismissal and one for detrimental treatment linked to the dismissal – at least for now

The Court acknowledged that this interpretation is “unsatisfactory” and expressed concern that it creates overlap and complexity in cases of dismissal. However, it felt bound by existing authority. The Court suggested that Parliament or the Supreme Court may need to intervene to clarify the law.

Permission to appeal to the Supreme Court has been granted, in which it is hoped we will get a definitive ruling on whether dismissal can be pursued as a detriment under s.47B. Until then, Osipov remains binding, as the Court of Appeal in Wicked Vision has confirmed.

Why does this matter?

With the door remaining open for whistleblowers to pursue twin-track claims arising from the same dismissal, the decision has real consequences for employers. In particular, detriment claims allow for:

Vicarious liability where employers are held responsible for acts of detriment committed by their employees, including where the detriment is linked to dismissal.
A lower causation test compared to dismissal claims, making them easier to prove.
Damages for injury to feelings arising from dismissal, which is not available in unfair dismissal claims.
Personal liability for individuals involved in the dismissal decision, such as managers or directors.

The potential outcomes of this are increased litigation risk, higher potential compensation, and (even) more complex case management. Employers who thought they had contained their exposure by defending an unfair dismissal claim may face a parallel detriment claim with different remedies.

Key takeaways

Employers have a statutory defence to whistleblowing detriment claims under s.47B ERA if they can show they took 'all reasonable steps' to prevent the employee from committing the detrimental act. Practical steps for employers to consider in light of the Court of Appeal's decision are:

Review whistleblowing policies: ensure they are clear, accessible, and regularly updated. Make it explicit that there is a zero tolerance approach to retaliation.
Establish clear reporting channels: employees should know how to raise concerns safely and confidentially.
Train managers and HR teams: those handling disclosures must be aware of the legal protections, know how to recognise protected disclosures, and understand the importance of responding to them promptly and avoiding retaliatory action.
Document decision-making: keep detailed records of the reasons for dismissal and the process followed. This will be critical evidence if a claim arises.
Seek legal advice early: if a dismissal involves an employee who has blown the whistle, obtain specialist advice before taking action.