Can an individual be personally liable for the dismissal of a worker?

Potentially yes.

The claims

Mr Osipov brought a number of claims against his former employer, International Petroleum Limited (IPL), and against two non-executive directors, Mr Sage and Mr Timis. The claim was for having been subjected to a number of detriments after making a series of protected disclosures.

Mr Osipov brought a claim for automatically unfair dismissal against IPL and detriment claims against IPL and the two non-executive directors. The detriment claim against the two non-executive directors included a claim that Mr Osipov was dismissed.

Mr Osipov was successful in his claim.

The appeal

Messrs Sage and Timis appealed on the basis that any compensation for dismissal related detriment could only be pursued against IPL and not against them personally. The Employment Appeal Tribunal rejected this and found that claims against individuals could include losses flowing from dismissal where the claimant had been subject to a relevant detriment by those individuals.

This was upheld by the Court of Appeal which confirmed that an individual whistleblower who was dismissed after making a protected disclosure could bring claims against the individuals who took the decision to dismiss.

Impact on organisations

This decision will be have a huge impact for organisations, particularly individuals in managerial positions who are the most likely to be in positions similar to that of Messrs Sage and Timis, the appellants in this case.

In most cases the individual liability of an individual is of limited practical significance because the employer usually has sufficiently deep pockets. However, in this case the employer was practically insolvent. Employers may be start-ups or SMEs with limited capital and therefore senior individuals in these types of organisations may be vulnerable to claims.

What should employers do?

Employers should be proactive to ensure they have taken all reasonable steps to prevent their workers from subjecting co-workers to whistleblowing detriment. This could include:

  • Putting in place systems to identify potential protected disclosures at an early stage so that they can be properly managed and addressed
  • Training to increase management awareness of the potential risks and ensuring robust whistleblowing polices are implemented


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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