Two non-executive directors (external board members who advise a company) of International Petroleum Ltd have been found liable for the unfair dismissal of a whistleblower. The tribunal heard how Mr Osipov, the CEO, had blown the whistle on colleagues at the top of management, claiming how they were prepared to “engage in serious wrongdoing”. He then suffered ‘detriment’ (legal jargon for harm) in the form of being dismissed as a result of his disclosures.
Two senior colleagues were found liable by the tribunal for their actions leading to the dismissal of the whistleblower Mr Osipov. The individual had instructed the second to dismiss him, and the second had done so. The directors appealed the ruling but their appeal was dismissed, with the initial decision being upheld. The award to Mr Osipov exceeds £1.7m to compensate for both injury to feelings and his loss of earnings after his dismissal.
What makes this case particularly interesting is how, until now, it was understood by legal practitioners that a whistleblower could not sue a colleague, only the company (i.e. ‘vicarious liability’). This case says that, surprisingly, an individual can be ordered to pay compensation for whistleblowing detriment. But not if that harm is a dismissal, as only an employer, not a colleague, can dismiss you.
Also, note that the award of compensation was ‘joint and several’. This means the employee can choose to recover the £1.7m from either the colleagues or the company and then leave those two to fight it out between themselves for who should pick up the final tab.
It is this non-traditional approach to a whistleblowing detriment that makes this case so interesting. It poses the question as to whether more claimants will chose to sue colleagues in future detriment cases.
A good reason for suing a colleague for the dismissal of a whistleblower is to put the pressure on the other side, who will be feeling the pressure not just from the employee, but from the managers who are being sued individually.
By Matthew Wheatley