Rice v Wicked Vision [2025] EWCA Civ 1466 Analysis

Date: April 20, 2026 Author: UK Labour Law Blog 0 Comments Image by Mohamed Hassan from Pixabay

1. Introduction

Amendment of applications to the employment tribunals is usually a matter for the discretion of the tribunal and raises no point of law for appeal. Rarely have two cases (Rice v Wicked Vision [2025] EWCA Civ 1466) about an amendment of applications caused so much controversy and finished up in the Supre me Court, soon to be heard. The key question in both cases, however, was whether section 47B Employment Rights Act 1996 can found a claim against an employer arising from a co-worker’s act amounting to a dismissal and thus whether the amendment so to plead should be allowed to proceed. The detriment relied on in these cases is usually by way of instruction or pressure to dismiss exerted by a co-worker as a co-worker cannot himself actually dismiss anyone. The controversy engendered by these two cases involved considering in depth the status and meaning of the controversial Court of Appeal decision in Timis v Osipov [2019] ICR 655 (“ Osipov ”) .

A claim for dismissal by reason of protected disclosure was added to the original shape of the unfair dismissal provisions (still largely in the form it has been in since the passage of the Industrial Relations Act 1971) by the Public Interest Disclosure Act 1998 which was then itself incorporated into the Employment Rights Act 1996. Detriment is not defined in the Act but has a wide meaning.

Section 47B Employment Rights Act 1996 provides for detriment by reason of a public interest disclosure but this is disapplied by section 47B(2) when “the detriment in question amounts to dismissal (within the meaning of Part X)”. This is of course not straightforward to apply. The words “amounts to” and the scope of Part X of the 1996 Act, the unfair dismissal provisions, are crucial to the appropriate interpretation.

The co-worker provision was introduced by the Enterprise and Regulatory Reform Act 2013 in response to the decision in Fecitt v NHS Manchester [2012] ICR 372 which held that “There is no provision making it unlawful for workers to victimise whistleblowers”.  The purpose of the amendments was to make employees and agents of an employer liable for their acts of victimisation against a co-worker, and to render the employer vicariously liable for such acts. The individual employee is rendered liable in his or her own right, irrespective of the liability of the employer but the employer may be liable too, jointly and severally with the co-worker. This is also one of the few detriment provisions which goes beyond employees to offer rights to workers too.

There are significant differences in what these claims for detriment and dismissal under the Employment Rights Act 1996 comprise:

1. under section 47B, the burden of proof of causation is on the employer, not on the claimant;
2. under section 47B, the claimant can recover damages for injury to feelings whereas that is not available in the unfair dismissal jurisdiction (Dunnachie v Kingston-upon-Hull Council [2005] 1 AC 226);
3. under section 103A in the case of dismissal, the claimant can apply for interim relief, and reinstatement if successful;
4. the causation test is ‘material influence’ for section 47B as against the trickier ‘sole or principal reason’ test for section 103A. Under both, there is no cap on the amount compensation which can be awarded.

2. Osipov; the little loved case

It is very unusual for a Court of Appeal to say so boldly as did the panel of judges in Wicked Vision ** (para 4) “Had we been free to depart from that decision [Osipov ], which we are not, we would have done so, as we respectfully disagree with its interpretation of the legislation.” The Court of Appeal in Wicked Vision however felt duty bound to apply the Osipov conclusion by reason of the doctrine of precedent. So we should examine the reasoning in Osipov with great care but before doing so we need to consider the earlier (and largely forgotten) case of Melia v Magna Kansei Limited [2006] ICR 410.

a. Melia

The claimant’s allegation was that he was forced to resign because he was a whistleblower. The essential issue was whether he could base a detriment claim on the series of acts on which he relied as a repudiatory breach of the contract of employment, so long as those acts were before the date when he resigned. This case was heard after the 1998 amendments but before those made in 2013.  Chadwick LJ assessed that the exclusion covered on the basis that “Parliament did not intend to confer a right under Part V of the 1996 Act for the protection of whistleblowers in circumstances where the worker (being an employee) would have a right under Part X of that Act in relation to the same loss or detriment.” Loss suffered before the dismissal was not taken out of section 47B and Part V by the limitation in section 47B(2) (paragraph 32).

The Court of Appeal in Wicked Vision agreed with this “lucid analysis”: “If the detriment cannot be compensated under the unfair dismissal provisions – because it is not a loss sustained in consequence of the dismissal – then there is nothing to take it out of section 47B; and the provisions in section 49, which require compensation for that detriment, should apply”. Underhill LJ in Osipov , however, distinguished Melia because “those observations were made in the context of the particular issue in that case, namely whether the claimant could recover under Part X for an injury suffered prior to the dismissal. That was a wholly different question from the issue before us.” The dividing line between the principles applied in Osipov and Wicked Vision runs through the impact of Melia.

b. The facts and lower courts in Osipov

In Osipov , the ET found that Mr Osipov had been unfairly dismissed by the company IP for making protected disclosures in respect of a failure to conduct a competitive tendering process in relation to exploration operations in the Niger. It also held that Messrs Timis (the largest shareholder) and Sage (the Chair) had subjected the claimant to the detriments of giving instructions, “communication of dismissal”  or recommendations to dismiss. The measure of loss sought was an uncapped recovery of post-termination losses. The two men were held to be jointly and severally liable with the company to compensate him for his losses, amounting to over £2m. This conclusion was important in practice because the employing company IPL was an Australian-domiciled gas and exploration company which was insolvent and in fact it did not take any part in the appeal. The only basis on which Mr Osipov could gain the large sum he was awarded was if he succeeded against the directors who both had authority to dismiss and Mr Timis was found to be the initiator of that decision. The sum awarded included compensation for detriment equal to the compensatory part of the unfair dismissal award against IPL as well as compensation for injury to feelings and an uplift for procedural fault.

On appeal by the directors, Simler P in the EAT approached the problem from the point of view that it was appropriate to construe section 47B(2), so far as it can properly be construed, to provide protection for the employee rather than to deny such coverage. She noted that section 47B(2) did not relieve a co-worker of liability for a detriment amounting to dismissal which is not within the meaning of Part X (that is the provisions on unfair dismissal). That only meant a claim which could be brought under Part X which was an unfair dismissal by the employer. There was she decided an advised choice of language.

She held that section 47B(2) was confined to claims founded directly on the liability of the employer rather than those which are based on the statutory scheme on the liability of the worker and then to attribute those acts to the employer. This was the importance of the specific reference to Part X in the exclusion subsection. Underhill LJ on further appeal agreed with Simler P that a construction of section 47B(2) which prevented a claimant from bringing a claim against a co-worker based on the detriment of dismissal would produce an incoherent and unsatisfactory result and was accordingly unlikely to conform to what was Parliament’s intention.

c. The Court of Appeal in Osipov

decided that a claimant worker bringing a complaint about a dismissal effected by a co-worker could say they were not complaining about an act done by the employer but rather by the co-worker. Thus section 47B(2) was in essence an anti overlap provision which operated only where the identical right under Part X was available under section 103A. Thus, section 47B(2) was found to exclude only a claim against the employer in respect of its own act of dismissal (“the identical remedy”) and not to exclude for example instructions to dismiss which would amount to a detriment. The employee therefore succeeded.

The two advantages for claimants in pursuing such a remedy were as stated above that they could gain damages for injury to feelings and rely on a less restrictive causation test. These were however “particular wrinkles” without any wider significance for the construction of the provision. Underhill LJ indeed accepted at para 78 that “this approach…does not produce a particularly elegant result. It is clumsy that an employee dismissed on whistleblower grounds should be able to pursue distinct causes of action, with significant differences as regards the conditions of liability and (perhaps) compensation, against his or her employer.”

3. *Wicked Vision*

a. Wicked Vision The facts and lower courts

The Court of Appeal heard the cases of Wicked Vision and Barton Turns together. They both raised issues of amendment of the original applications but their provenance was different and this factual difference needs to be unpacked.

In Wicked Vision, the employee Mr Rice sought to amend his application to add this claim against his employer a toy manufacturer : “Dismissing the claimant. (This is a complaint that Mr Strang, a worker for the respondent, subjected to the claimant to the detriment of dismissal contrary to section 47B(1A) of the ERA, for which the respondent is liable under section 47B(1B))”. The protected disclosure was in relation to the Claimant being asked to continue working whilst on furlough. The employing company was the only respondent to the claim; the individual directors were not involved as they were in Osipov. The ET granted the application to amend considering that section 47B did not make a claim for a co-worker’s detriment depend on whether the co-worker had been joined in the claim, because the employer was in any event vicariously liable for that detriment. The EAT said that applying section 47B (as interpreted in Osipov), “all that was necessary was to scrutinise the proposed claim against the employer and to ask whether it was based on… “detriments amounting to dismissal within the meaning of Part X; in other words to detriments amounting to unfair dismissal claims necessarily against the employer ”. That question in this case could only receive an affirmative answer. Bourne J restricted the Osipov ** ratio to the “vicarious liability of the employer [which] would, or could, follow from the co-worker’s liability, but the position of the employer was not the issue in the case and, in my judgment, forms no part of the ratio”. He thus allowed the employer’s appeal; amendment was inappropriate.

b. Barton Turns; the facts and lower courts

Here the tribunal rejected Ms Tredwell’s application to amend her claim to include complaints of being subjected to non-dismissal detriments because she had made protected disclosures (pursuant to section 47B of the 1996 Act). The detriments on which she wished to rely included her dismissal. This was on the basis that “The plain wording of the statute is that detriment must constitute something other than dismissal”. The EAT held that it was bound by Osipov ** to allow the amendment and it declined to follow the then EAT decision in Wicked Vision. It said that “All that section 47B(2) excludes is a claim against the employer in respect of its own act of dismissal”.

c. The Court of Appeal

Laing LJ for a unanimous court reviewed these differing decisions of the EAT. This panel (Peter Jackson and Coulson LJJ) took a different view of construction to the Underhill court concluding that “There is no warrant for the view that employees should, as well as being able to claim under Part X, be given the windfall of a claim under Part V also based on their dismissal, when Parliament has unambiguously decided that the extent of their protection from dismissal should be a claim under Part X.” (para 68).

The Court of Appeal found three reasons for rejecting the idea that Part X only applied to a dismissal by an employer which was in effect the conclusion reached in Osipov ** (paras 74-77):

1. “by definition, a dismissal is always an act of the employer. There is no relevant legal distinction in these cases between a dismissal ‘by the employer’ and a dismissal ‘by a co-worker'”;
2. “this argument, is, on its own terms and in these cases, circular. If there were any doubt (and there is none) this means that the dismissal ‘by the co-worker’ is ‘treated as also done by the employer’. Its legal effect, therefore, is that the employee is dismissed by the employer, and that act ‘amounts to a dismissal (within the meaning of Part X)”;
3. “If it amounts to a dismissal (within the meaning of Part X), the employer is liable for it and the employee cannot therefore make a complaint under Part V”. The result as expressed by Laing LJ was that “The words are clear. It is just not possible for such an employee to rely on section 47B(1A)-(1E), because, if his complaint is in substance about a detriment which amounts to his dismissal by his employer, the whole of section 47B is deliberately disapplied, including section 47B(1A)-(1E).” (para 73). Essentially, the cause of action of dismissal by a co-worker was no different to that of dismissal by the employer. The Court of Appeal would thus not have allowed the amendments but felt compelled to follow the Osipov ** precedent.

4. Conclusion

This matter is now firmly in the hands of the Supreme Court to decide between the two Court of Appeal panels. The conclusions in Wicked Vision ** are compelling because, as the Court of Appeal states, there was no warrant to distinguish Melia as the Court of Appeal did in Osipov ** as provisions on the lines of section 47B(2) of the Employment Rights Act 1996 have been in the legislation since the outset.  The principle applied by Chadwick LJ in Melia is in my view compelling; that if the detriment cannot be compensated under the unfair dismissal provisions, because it is not a loss sustained in consequence of the dismissal, there is nothing to take it out of section 47B and the provisions of section 49 of the Employment Rights Act 1996 which require compensation for that detriment should apply. Whilst Osipov ** is wholly understandable in policy terms it is difficult to square with the legislative history and the true construction of the provision. This will make for interesting arguments before Their Lordships to be held in Scotland in May.

(Suggested citation: J Bowers, Recent developments in whistleblowing: What a Wicked muddle, UK Labour Law Blog, 20 April 2026 available at https://uklabourlawblog.com/)

About the author:

A frequent lecturer on employment law, John has written 16 books including the recently published ‘Downward Spiral’ on the collapsing public standards in Britain. He is a member of Littleton Chambers. He sits out of term as a Deputy High Court Judge in the Employment Appeal Tribunal. He is stepping down in September after 11 years of serving as Principal of Brasenose College, Oxford .

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