Timis v. Osipov: Personal Liability? Decision Makers and Advances in Whistleblowing

Abstract

Much has been written recently about employment status including bogus self-employment, atypical workers, zero hours contracts and about vicarious liability in the law of torts and employment law. The case under discussion does not deal with these issues but with related interesting issues involving categorization of working people into employees and workers so as to determine the remedy for whistleblowing under statute and with whether liability in that area of law can be both direct and vicarious. To understand the case one needs to appreciate that the law of unfair dismissal as set out in the Employment Rights Act 1996 applies only to ‘employees’ and therefore both those classified as ‘workers’ and as independent contractors do not; however, workers, though not independent contractors dismissed solely or principally for one of the reasons which would be potentially unfair (prima facie invalid) may have a different remedy when the claim is one of whistleblowing. In relation to vicarious liability under the relevant statute, the Employment Rights Act 1996, there was on the facts of the case to be discussed no doubt that the employers were vicariously liable, but could they also be directly liable? The authority below demonstrates that because of the scheme of the Act both that a worker dismissed for whistleblowing has a remedy not for unfair dismissal because he is not an employee but for ‘detriment’, the detriment being put through a disciplinary process. This preserves the law since 1 January 1972 that remedies for unfair dismissal are granted only to those classed as employees. In respect of vicarious liability, as this commentary shows, both direct and vicarious liability are available against employers in a whistleblowing case. The consequences of these decisions are noted at the end. Personal liability, whistleblowing, unfair dismissal, compensation, termination.