Detriment 


A worker (which includes all employees) can claim compensation for detriment suffered on the ground that they made a protected disclosure. Whereas a claim for dismissal can only succeed if the protected disclosure was the only or main reason for dismissal, a claimant for whistleblowing detriment need only establish that the protected disclosure was one significant influence on the decision to impose a detriment, applying the same test as is used in claims for discrimination (NHS Manchester v Fecitt and others [2011] EWCA Civ 1190).


Dismissed employees can bring claims for whistleblowing compensation alleging both detriment(s) and dismissal. In other words, the dismissal decision itself can be a detriment (Royal Mail Group Limited v Jhuti [2017] EWCA Civ 1632). 


Claims for whistleblowing detriment can be brought against the employer (section 47B(1), ERA 96) and also against co-workers in the course of their employment. Claims can also be brought against any agent acting with the employer’s authority (section 47B(1A), ERA 96). 


Employers are vicariously liable for detriments by co-workers in the course of employment (for example, bullying), whether or not they were inflicted with the employer’s knowledge and approval. The employer has a defence if they can show they took “all reasonable steps” to prevent the detriment (section 47B(1D), ERA 96).

Individual co-workers and managers are personally liable for the detriments they cause in the course of their employment. Even if the employer escapes liability by showing that they took “all reasonable steps” to prevent the detriment, an individual worker can remain personally liable for their own wrongdoing. These provisions echo the vicarious liability provisions in section 109, Equality Act 2010 (see Chapter 7).

An injury to feelings award can be made in a claim for whistleblowing detriment, whether the claim is brought against the employer or individual co-workers (or both). 


Instigating or recommending a dismissal because an employee blew the whistle.can be a detriment. For example, in Timis and Sage v Osipov [2018] EWCA Civ 2321, the individual senior managers in charge of deciding on the dismissal were personally liable for all the resulting foreseeable losses, including uncapped compensation for future lost earnings and injury to feelings. In that case, it made sense for the claimant to pursue the two individual directors for the full amount of the compensation (over £2 million) because the employer, an oil exploration company, was no longer solvent, while the directors were covered by directors' liability insurance.


In the next case, the Court of Appeal ruled that a Royal Mail manager could be held personally liable for whistleblowing detriment after he retaliated against a whistleblower by engineering her dismissal by a different manager who knew nothing of the disclosures: 


In whistleblowing cases involving a dismissal, interim relief can be claimed if the claimant can show they are “likely” to succeed in showing that the dismissal was for whistleblowing. Interim relief must be sought within seven days of dismissal. Urgent legal advice should be taken. See page 166, Chapter 5.





Any term in a contract, policy or other agreement such as a settlement agreement that tries to prevent a worker making a protected disclosure is void. 


Whistleblowing law protects someone who makes a protected disclosure after their employment has ended (Onyango v Adrian Berkeley T/A Berkeley Solicitors [2013] UKEAT/0407/12/ZT).