The whistleblowing framework’s structural collapse

The recent Court of Appeal’s judgment in the important whistleblowing cases Wicked Vision and Barton Turns highlights the need for legislative reform of the UK’s outdated and ineffective rules on workplace whistleblowing. To quote from its final sentence: “It is plainly unsatisfactory that the construction of this legislation has now produced conflicting decisions at three levels of court [Employment Tribunal, Employment Appeal Tribunal & Court of Appeal], but that can only be resolved by the Supreme Court or by amendment to the legislation”.

What’s the problem?

The UK’s legal rules on the protection of whistleblowers, as originally introduced in the Public Interest Disclosure Act 1998 and then amended in 2013, are technical and complex. For historic reasons, they contain separate rules on whistleblowing detriment claims and whistleblowing dismissal claims. There are important distinctions between them: in particular, the rules on whistleblowing detriment claims are wider in various ways. They protect the wider class of “worker” (whereas the dismissal rules only apply to employees), contain a less restrictive causation test, permit claims against co-workers (rather than only against the employer entity) and also permit claims for injury to feelings compensation (rather than only financial losses). 

In many ways, this means the whistleblowing detriment provisions mirror discrimination law, whereas the whistleblowing dismissal provisions mirror unfair dismissal law. (That said, there is no need in a whistleblowing dismissal claim for the Claimant to have any prior length of service, as is currently the case for an ordinary unfair dismissal claim, and the cap on compensation that applies to the latter does not apply to a whistleblowing dismissal claim). 

In 2018, the Court of Appeal appeared to have squared the circle between these provisions in the seminal case of Osipov. On the face of the legislation, there is a clear distinction between the whistleblowing detriment and dismissal claims rules. Within the detriment claims rules, there is a proviso that they do not apply to claims by an employee for any detriment which “amounts to dismissal”. The employer had gone insolvent, hence the whistleblower wanted to be able to claim compensation for his dismissal from the directors who dismissed him. He did so by claiming for the “detriment of dismissal” against the directors personally. The Court of Appeal held that detriment of dismissal claims against co-workers are permissible, with the above proviso only serving to prevent employees from bringing detriment of dismissal claims against employers. This meant that the claimant was able to recover their compensation against the directors (who were insured under D&O insurance). 

The Osipov decision therefore highlighted the anomalies between the rules on whistleblowing detriment and dismissal claims but found a pragmatic solution to them. This was based on the express purpose of the legislation: to protect whistleblowers. According to the judgement, if claimants were prevented from bringing claims against co-workers for the detriment of dismissal, this would produce an incoherent and unsatisfactory result, which the Court considered was unlikely to have been the intention of the UK Parliament. 

By contrast, in Wicked Vision, three Court of Appeal judges have indicated that they respectfully disagree with the Osipov decision, whilst holding that they were bound by precedent to follow it. As things stand, whistleblower claims for the detriment of dismissal against senior managers with responsibility for the dismissal decision remain possible, but an appeal to the Supreme Court seems likely.

Can the Supreme Court solve it?

A Supreme Court judgement would be welcome, as the current lack of clarity on “detriment of dismissal” claims is in nobody’s interests. However, in my view, the Court of Appeal’s recent judgement has again highlighted the wider need for Parliament to undertake root and branch reform of the UK’s whistleblowing rules. It is no secret that the whistleblowing framework is weak and ineffective in many ways. The previous government commissioned a study on this, which was published in the summer, but it is unclear whether the current government intends to take any action. 

For as long as the whistleblowing dismissal provisions remain weak and ineffective, claimants will be incentivised to rely on multiple whistleblowing detriment allegations. Too many cases get bogged down in all the technical complexities of the rules, and genuine whistleblowers can’t always obtain redress, whilst claims of questionable validity win on technicalities. 

When you add on top the increasingly severe delays being encountered in employment tribunal litigation, cases often take years to resolve. As an example, the Claimant in Wicked Vision was dismissed in February 2021 and almost five years later is now facing a trip to the Supreme Court simply to clarify a preliminary question: whether there can be an amendment to their claim to include a “detriment of dismissal” claim. This cannot be right, on either side.

As recorded in the Supreme Court’s famous decision in UNISON (the tribunal fees judicial review case) employment tribunals “are intended to provide a forum for the enforcement of employment rights by employees and workers, including the low paid, those who have recently lost their jobs, and those who are vulnerable to long term unemployment. They are designed to deal with issues which are often of modest financial value… but are nonetheless of social importance”. They were originally established on the recommendation of the 1968 Donovan Report to provide “an easily accessible, speedy, informal and inexpensive procedure for the settlement of employment disputes”. Statutory employment law was in its infancy at the time. It would be 30 years until the UK’s groundbreaking Public Interest Disclosure Act 1998 became law. 27 years later, meaningful reform to protect genuine public interest whistleblowers and ensure they feel able to raise their concerns internally is long overdue.