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An employee cannot bring a claim of whistleblowing detriment against his employer where the act of detriment relied upon is dismissal
Adrian Fryer
There are two claims which can be brought by employees associated with whistleblowing. The first is a claim of detriment. Employees can claim against their employer (and a wider category of individuals including colleagues) for unfavourable treatment on grounds of whistleblowing. This is a detriment claim. Employees can also bring a claim against their employer for automatic unfair dismissal where they claim that the main reason for their dismissal is whistleblowing.
It is usually fairly easy to understand which claim should be brought in any given scenario. However, in the recent case of Rice v Wicked Vision, the Employment Appeal Tribunal intervened to prevent a claim of detriment proceeding against the employer in circumstances where the detriment relied upon was dismissal. In this case, the Claimant brought a claim of automatic unfair dismissal against the Respondent. He alleged he was dismissed because he had made protected disclosures. The Claimant later tried to amend his claim to add that the act of the dismissing officer in dismissing him was a detriment on grounds of whistleblowing for which the Respondent was liable. The tribunal allowed the amendment.
The EAT disagreed with the tribunal’s decision. The law states that if an employee is dismissed due to whistleblowing, their claim against their employer in relation to the dismissal is for automatic unfair dismissal. The act of dismissal can’t be brought as a detriment claim against the employer. The Claimant could have claimed detriment against the individual dismissing officer. But, they couldn’t claim the detriment of dismissal against the employer directly.
The correct claim against the Respondent employer was the one originally brought: automatic unfair dismissal.