Court of Appeal felt a different interpretation should be allowed to bar dismissal as detriment claims for whistleblowers yet felt bound by previous Court of Appeal judgment in the area.

The claimant brought a claim for automatic unfair dismissal and then sought to amend it to include a whistleblowing detriment claim which outlined that a co-worker who dismissed him had subjected him to a detriment due to a protected disclosure. The second separate case, but on related points, had similar background where an employee was dismissed after raising health and safety concerns.

In the first case it was held by the EAT that the legislation excluded a whistleblowing detriment claim where the detriment was dismissal.  However, in the second it was found that the detriment regarding dismissal were not so barred. This led to appeals from the claimant and respondent respectively on the law in this area which went to the Court of Appeal.

Much centred upon the decision in Timis v Osipov [2018] when the Court of Appeal held that when an employee who brought a complaint of unfair dismissal and a simultaneous claim of detriment against a co-worker it was held that the legislation was not a bar for him to do so.  The Court of Appeal outlined that it differed in its interpretation of the legislation from the court in Osipov instead this court felt that a claim could not be made for detriment when it amounted to a dismissal.  It did not matter whether it was a co-worker rather than the employer as the actions of the co-worker would be the actions of the employer anyway.

This conflict was clear to see between how the Court of Appeal wished to interpret the legislation and the binding nature of the Osipov judgment.  The Court of Appeal held that considering the precedent it could not overrule it and had to follow it.  They outlined that this was an unsatisfactory outcome and that it could only be resolved by the Supreme Court or through a legislative amendment.

This case is probably best described as being legally technical with it resting upon differing interpretations of the same legislation. It does showcase the workings of precedent within our common law system, though, with the effect that the decisions of the Court of Appeal will bind the future Court of Appeal and that it will rest with the Supreme Court to overturn those settled decisions of the Court of Appeal.  This has led to an unsatisfactory turn of events in the interpretation relating to whether the detriment can be the dismissal – the Court of Appeal here clearly felt that it could not but had to find that it did.

You can read the case in full here.