Introduction

In Rice v Wicked Vision Ltd; Barton Turns v Treadwell [2025] EWCA Civ 1466, the Court of Appeal (Civil Division) addressed a recurring and contentious interface in UK employment law: the relationship between whistleblowing detriment claims under Part V of the Employment Rights Act 1996 (ERA) and unfair dismissal claims under Part X. The central procedural issue across the conjoined appeals was whether Employment Tribunals erred in dealing with applications to amend claims to add whistleblowing “detriment” allegations where the alleged detriment was the dismissal itself, and whether such amendments could proceed without joining the individual co‑worker whose act is said to have caused the dismissal.

The judgment has two striking features. First, the Court holds that it is bound by the earlier Court of Appeal decision in Timis v Osipov [2018] EWCA Civ 2321; [2019] ICR 655 (“Osipov”), thereby confirming that an employee may bring a Part V claim treating a dismissal as a detriment by a co‑worker under s47B(1A), and a parallel vicarious liability claim against the employer under s47B(1B), notwithstanding the textual exclusion in s47B(2). Crucially, the Court confirms that such a claim can be pursued against the employer without joining the co‑worker. Second, in powerful obiter, the Court explains why, if free to depart, it would have rejected Osipov’s construction, reading s47B(2) as excluding all dismissal-as-detriment claims by employees under s47B.

The parties spanned two fact patterns: in Wicked Vision, Mr Rice sought to amend to add a dismissal-as-detriment claim under s47B(1A)/(1B) without joining the decision-maker; in Barton Turns, Ms Treadwell sought to amend to add both non-dismissal detriments and the dismissal itself as a detriment. Conflicting EAT decisions necessitated appellate clarification.

Summary of the Judgment

• The Court of Appeal holds that Employment Tribunals and the EAT were bound by Osipov. As a consequence, employees can advance whistleblowing claims alleging the detriment of dismissal against co‑workers under s47B(1A) and, via s47B(1B), against employers on a vicarious basis—even though s47B(2) states that s47B “does not apply” where the worker is an employee and “the detriment in question amounts to dismissal (within the meaning of Part X).”
• Importantly, the Court confirms that a claimant does not need to join the co‑worker to plead the employer’s vicarious liability under s47B(1B); a direct claim against the employer may be amended to add this ground.
• Applying that approach, the Court:
  • Allows the appeal in Wicked Vision, holding that the ET should have permitted the dismissal-as-detriment amendment (subject to time limits) despite the co‑worker not being joined.
  • Dismisses the employer’s appeal in Barton Turns, upholding the allowance of non-dismissal detriments and the addition of the dismissal as a detriment; and dismisses a discrete “relabelling” challenge to amendments adding the words “amounted to a detriment.”
• The Court expressly states that it respectfully disagrees with Osipov’s statutory construction, but considers itself bound by it. Any resolution must come from the Supreme Court or Parliament.

Background and Procedural Posture

Wicked Vision

Mr Rice, Head of UK Sales, was dismissed for redundancy in February 2021. He pleaded unfair dismissal (s94) and automatic unfair dismissal for protected disclosures (s103A). Shortly before and then at case management hearings, he sought to amend to add s47B detriment claims, including the dismissal itself as a detriment by the owner/director, Mr Strang, under s47B(1A), with the employer vicariously liable under s47B(1B). He did not seek to join Mr Strang personally. The ET allowed the amendment in principle; the EAT reversed, holding s47B(2) barred an employer-focused detriment claim amounting to dismissal.

Barton Turns

Ms Treadwell brought claims for automatic unfair dismissal under s103A (whistleblowing) and s100(1)(c) (health and safety). She sought to amend to include non-dismissal detriments and also to treat her dismissal itself as a detriment under s47B. The ET allowed the non-dismissal detriments but refused the dismissal-as-detriment amendment. The EAT allowed the employee’s appeal on Osipov grounds and dismissed the employer’s cross-appeal.

Statutory Framework

• Part V ERA 1996: “Protection from suffering detriment in employment.”
• Part X ERA 1996: “Unfair dismissal.” Section 94 (right not to be unfairly dismissed), section 95 (definition of dismissal), and section 103A (automatic unfair dismissal if reason/principal reason is a protected disclosure).
• Part IVA ERA 1996 (inserted by PIDA 1998): defines protected disclosures; extends “worker” and “employer” concepts via s43K.
• Section 47B ERA: confers the right not to be subjected to detriment for making protected disclosures.
  • Subsections (1A)–(1E) (inserted by ERRA 2013) create personal liability of co‑workers and agents and vicarious liability of employers; and a “reasonable steps” defence for employers in vicarious claims.
  • Subsection (2) states the entire section “does not apply” where the worker is an employee and “the detriment in question amounts to dismissal (within the meaning of Part X).”

Precedents Cited and Their Influence

Melia v Magna Kansei Ltd [2005] EWCA Civ 1547; [2006] ICR 410

Melia analysed the architecture of the 1996 Act as amended by PIDA 1998. Chadwick LJ characterised s47B and s103A as “parallel” and “complementary” protections for whistleblowers. He held that the phrase “the detriment in question amounts to dismissal” in Part V excludes detriment that can be compensated under Part X. However, losses pre-dating dismissal remain recoverable under Part V. The current Court confirms agreement with Melia’s high‑level analysis and its reading of complementarity.

Fecitt v NHS Manchester [2012] EWCA Civ 1190; [2012] ICR 372

Before ERRA 2013, there was no personal co‑worker liability for whistleblowing detriment; hence no vicarious liability could attach. ERRA 2013 was enacted to change exactly that. The present Court accepts that the 2013 amendments responded to Fecitt by creating individual liability and employer vicarious liability for whistleblowing victimisation.

Timis v Osipov [2018] EWCA Civ 2321; [2019] ICR 655

Osipov held that s47B(2) does not bar a claim under s47B(1A) against a co‑worker for the detriment of dismissal, nor a vicarious liability claim under s47B(1B) against the employer for that co‑worker act. It reasoned that s47B(2) excludes only a claim against the employer for its own act of dismissal under Part X. In effect, dismissal could be re‑characterised as a detriment when attributed to a co‑worker, with vicarious liability then attaching to the employer.

In the present case, the Court of Appeal says it would, if free, reject Osipov’s construction in favour of a straightforward reading that s47B(2) disapplies the whole of s47B where the detriment “amounts to dismissal.” But as a matter of precedent, it holds that Osipov binds both tribunals and this Court, including in the procedural context of amendments and where the co‑worker is not joined.

Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586 (HL)

The Court relies on Inco to emphasise the strict limits on judicial correction of statutory drafting. It rejects any invitation to treat s47B(2) as a drafting oversight or to carve out subsections (1A)–(1E) by implication.

Selkent Bus Co Ltd v Moore [1996] ICR 836; Vaughan v Modality Partnership [2021] ICR 535; Abercrombie v Aga Rangemaster Ltd [2014] ICR 209

These authorities frame the Tribunals’ discretion on amendments. The Court applies them to uphold the amendments in Barton Turns as a “relabelling” rather than a new cause of action out of time.

Brickfield Properties v Newton [1971] 1 WLR 862; Mulalley & Co v Martlet Homes Ltd [2022] EWCA Civ 32

Cited to support the proposition that late amendments may be allowed where they arise out of the same or substantially the same facts, even if they might technically constitute a new cause of action.

Legal Reasoning

The Court’s two-track analysis: bound by Osipov, but disagrees with it

The Court sets out, in detail, its preferred construction of s47B(2): that the exclusion is clear, unambiguous, and disapplies the whole of s47B where, for an employee, “the detriment in question amounts to dismissal (within the meaning of Part X).” On this view, any claim whose “substance” is the dismissal, and any loss that is consequential on dismissal, should run only under Part X. This reading aligns with Melia’s complementarity and the deliberate differences between the Part V and Part X remedial regimes (e.g., causation tests and availability of injury-to-feelings awards).

However, recognising the binding force of Osipov, the Court holds it must accept the narrower reach of s47B(2): that it excludes only claims against the employer for its own act of dismissal, and does not bar (i) claims against co‑workers for the “detriment of dismissal” under s47B(1A), nor (ii) vicarious claims against employers for those co‑worker acts under s47B(1B). Once that is accepted, nothing in Osipov or the statute requires the co‑worker to be joined for an employer to be sued vicariously; the EAT’s suggestion to the contrary in Wicked Vision could not stand.

Why the Court would have departed from Osipov (if free)

• Textual clarity: s47B(2) uses the unqualified phrase “This section does not apply” and ties the exclusion to whether, in substance, the detriment “amounts to dismissal (within the meaning of Part X).” It does not speak in terms of “unfair” dismissal nor limit the exclusion to the employer’s “own act.”
• Scheme coherence: Many Part V provisions use identical or near‑identical exclusionary wording. The 2013 amendments did not alter s47B(2) or carve out subsections (1A)–(1E) when those were introduced—demonstrating a conscious legislative choice, not an oversight.
• Legal ontology of dismissal: A dismissal is, by definition, an act of the employer ending the contract. Where a co‑worker implements the decision, s47B(1B) treats the act as also that of the employer, underscoring that dismissal remains “within the meaning of Part X.”
• Legislative choice about remedies: Differences between Parts V and X (causation tests; injury-to-feelings availability) are features of the legislative design, not anomalies inviting judicial correction.

But precedent controls the outcome

The ratio in Osipov, as encapsulated in paragraph 91(1), binds the Court to hold that s47B(2) does not prevent an employee from pursuing dismissal-as-detriment claims against co‑workers and vicariously against employers. The Court reasons that this applies with equal force to procedural amendment applications and to cases where the co‑worker is not joined. Therefore, subject to ordinary time‑limit and discretionary considerations, Tribunals should allow such amendments.

Relabelling amendments

Applying Selkent and Abercrombie, the Court treats amendments adding the phrase “amounted to a detriment” to already pleaded factual incidents as classic relabelling, arising out of the same facts. Even if technically new causes of action, they are properly allowed in the Tribunal’s discretion.

Impact and Practical Consequences

Immediate procedural and strategic effects

• Claimants may plead, and amend to plead, s47B(1A) co‑worker liability and s47B(1B) vicarious liability treating dismissal as a detriment—even where a s103A automatic unfair dismissal claim is already on foot—without joining the co‑worker.
• This unlocks Part V remedies for dismissal events, including potential injury-to-feelings awards, and the Part V “on the ground that” causation test, alongside the Part X framework. While Osipov acknowledged potential awkwardness and overlap, this remains the current law pending Supreme Court or legislative intervention.
• Employers face increased exposure in whistleblowing dismissal cases to parallel claims under Parts V and X. Case management may need to address duplication, concurrency, and remedy overlap. Arguments about double recovery and remoteness will become more salient.
• Co‑worker joinder is not a procedural pre‑condition for a vicarious claim. However, strategic joinder may still be considered in appropriate cases (for completeness of findings, contribution issues, and tactical dynamics).

Substantive legal landscape

• The complementarity articulated in Melia continues to inform analysis of pre‑dismissal losses: Part V remains the route for non‑dismissal detriments and pre‑dismissal losses; Part X governs dismissal and losses consequential on dismissal—subject to Osipov’s carve‑out that allows dismissal to be framed as a co‑worker detriment under s47B(1A)/(1B).
• The “reasonable steps” defence in s47B(1D) becomes relevant where the employer is sued vicariously for a co‑worker’s act. But in cases where the decision‑maker is the owner/director, Tribunals may view the defence as difficult in practice, depending on facts and corporate attribution.
• The Court’s criticism of Osipov is forceful obiter. It signals a live possibility of future recalibration by the Supreme Court or Parliament. Until then, Tribunals are to apply Osipov as explained and extended here.

Time limits

Amendments remain subject to the ERA time limits (typically three months less one day from the date of the detriment/dismissal) and to Acas early conciliation rules. Parties should address limitation proactively when seeking late amendments.

Complex Concepts Simplified

• Detriment vs dismissal:
  • “Detriment” is any disadvantage or harm suffered at work because of a protected disclosure (Part V). It is an ordinary English term.
  • “Dismissal” is a defined termination of the employment contract by the employer (Part X, s95). A claim about the dismissal itself ordinarily belongs in Part X.
• The s47B(2) exclusion:
  • Textually, it says s47B “does not apply” where an employee’s detriment “amounts to dismissal.”
  • Under Osipov (binding), this excludes only claims against the employer for its own act of dismissal; it does not exclude claims against co‑workers for the detriment of dismissal, nor the employer’s vicarious liability for those acts.
• Co‑worker and vicarious liability (s47B(1A)–(1E)):
  • Co‑workers and agents can be personally liable for whistleblowing victimisation.
  • Employers are vicariously liable for those acts; they have a “reasonable steps” defence in respect of co‑worker acts alleged under s47B(1A)(a).
• Worker vs employee:
  • “Employee” works under a contract of employment.
  • “Worker” is broader; Part IVA extends it for whistleblowing purposes (s43K). Some Part V protections cover workers (including s47B).
• Causation tests and remedies:
  • Part X (unfair dismissal): the protected disclosure must be the “reason or principal reason” for dismissal; no injury-to-feelings award.
  • Part V (detriment): the detriment must be “on the ground that” the worker made a protected disclosure; injury-to-feelings awards are available.
• “Relabelling” amendments:
  • Amendments that add legal characterisation (e.g., “this amounted to a detriment”) to already pleaded facts typically do not constitute a new cause of action and may be allowed, particularly where arising from the same factual matrix.

Practical Guidance for Future Cases

For claimants and advisers

• Where a whistleblowing dismissal is alleged, consider pleading both:
  • Part X automatic unfair dismissal under s103A; and
  • Part V s47B claims treating the dismissal as a co‑worker detriment under s47B(1A) with employer vicarious liability under s47B(1B), especially where injury to feelings and different causation thresholds are strategically relevant.
• Co‑worker joinder is not required to sue the employer vicariously, but may be tactically useful in some cases.
• Watch limitation: add detriment claims promptly and align with Acas early conciliation requirements.
• Be prepared to address double recovery and remoteness where both Parts are invoked.

For employers and HR

• Expect parallel claims under Parts V and X in whistleblowing dismissal cases, with exposure to injury-to-feelings awards under Part V.
• Maintain robust whistleblowing policies, training and escalation procedures to support a “reasonable steps” defence to vicarious liability claims.
• Consider whether to seek joinder of alleged co‑workers for factual clarity and potential contribution issues.
• In case management, invite Tribunals to manage overlap, ensure no double recovery, and sequence issues (e.g., causation and remedy) efficiently.

For Tribunals

• Apply Osipov as affirmed here: s47B(2) does not bar co‑worker and vicarious employer claims treating dismissal as a detriment; co‑worker joinder is not a pre‑condition.
• On amendments, apply Selkent/Abercrombie: where additions are relabelling or arise from the same factual matrix, permission will ordinarily be appropriate, subject to limitation.
• Guard against double recovery where Parts V and X both yield compensatory awards.

Conclusion

Rice v Wicked Vision resolves a practical controversy left in the wake of Osipov and diverging EAT rulings: dismissal-as-detriment whistleblowing claims may be pleaded under s47B(1A) and s47B(1B) without joining the co‑worker, and Tribunals should generally allow amendments to that effect, subject to time limits. At the same time, the Court sets out, with unusual clarity, its disagreement with Osipov’s construction of s47B(2), favouring a plain-meaning exclusion of all employee dismissal-as-detriment claims under s47B. This creates a candid and deliberate tension in the jurisprudence, now acknowledged at three judicial tiers.

Until the Supreme Court or Parliament intervenes, Osipov remains binding. Practitioners should therefore expect dual‑track litigation in whistleblowing dismissal cases, with Part V detriment claims (including injury-to-feelings remedies and a distinct causation test) proceeding alongside Part X unfair dismissal claims. The Court’s treatment of “relabelling” amendments also provides a practical, claimant-friendly guide to late-stage amendments where facts are already pleaded. The case is an important waypoint in the ongoing calibration of whistleblower protections and the division of labour between detriment and dismissal regimes under the ERA.

Disposal: Wicked Vision appeal allowed; Barton Turns appeal dismissed (including the separate challenge to relabelling amendments). The Court observes that the statutory construction controversies can only be definitively resolved by the Supreme Court or legislative amendment.