It has been the case for a long time that individuals can be held personally liable for acts of discrimination, so (for example) a manager who refuses to promote a woman because of her pregnancy can be named as a Respondent in her Employment Tribunal claim for discrimination, alongside the employer. We have dealt with a number of cases over the years where individuals have been personally named as Respondents, but it is not something that the vast majority of managers (and other employees) are generally aware of.
A recent case has shown for the first time that this principle also applies in whistleblowing claims.
The case is Timis v Osipov, which was decided recently by the Court of Appeal.
The Claimant had been dismissed for having made protected disclosures, and the decision to dismiss him was taken by two of the employer’s directors. He brought an Employment Tribunal claim, and the Tribunal concluded that he had been unfairly dismissed for whistleblowing. The problem was that by that time, the employer company had become insolvent. Therefore the question was whether he could seek to bring claims against the two relevant directors personally.
The Employment Tribunal’s decision (which was upheld by the Employment Appeal Tribunal and the Court of Appeal) was that the two directors had subjected the Claimant to a detriment because of his whistleblowing (by recommending his dismissal). In the Tribunal’s view, that rendered them jointly and severally liable (together with the employer company) for compensating the Claimant. This is in addition to the principle of vicarious liability. Therefore although the employer company had become insolvent, the Claimant could seek compensation from the two directors personally.
This case could mean we see an increase in claims being brought against individual decision-makers in whistleblowing claims. This makes it even more important that employers ensure that the correct procedures are in place and that managers are properly trained in their responsibilities to follow them (we can help with this). Whistleblowing can be a particularly tricky area, so it is always best to take advice.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).