Mind the (Statutory) Gap: Dismissal or Detriment?

On 14 November 2025, the Court of Appeal handed down its long-awaited decision in Rice v Wicked Vision Ltd and Barton Turns Developments Ltd v Treadwell (with the whistleblowing charity Protect intervening).

The judgment shines a bright light on the increasingly tangled intersection between whistleblowing detriment claims and whistleblowing dismissal claims.

For employers, HR teams and senior leaders, the message from this case is clear: employees who are dismissed for making a protected disclosure, may still bring dual claims: a claim for the dismissal (automatic unfair dismissal) and a claim for ‘detriment’ by reason of the decision to dismiss. This is known as the Osipov precedent and although the Court ultimately upheld the Osipov precedent, it made no secret of its discomfort in doing so. In plain terms the tribunal considered that the statutory whistleblowing scheme does not ‘hang together’. However, unless and until Parliament steps in, or the Supreme Court is invited to untangle the knot, Osipov remains the law.

How we ended up here: a quick (and important) rewind

Whistleblowing protection had a glaring hole before 2013. A worker could be mistreated by colleagues for speaking up, but that mistreatment was not legally actionable. Only the employer’s own conduct counted, this gap was highlighted in Fecitt v NHS Manchester.

The Enterprise and Regulatory Reform Act 2013 patched the hole. It introduced:

• personal liability for co-workers and agents; and
• automatic vicarious liability for employers.

Suddenly whistleblowing protection looked much more like discrimination law: the individual manager who acted badly could be sued, and the employer under its vicarious liability would more than likely pick up the bill.

However, Parliament left one small problem in tact, and this has become the root of a decade of litigation.

The untouched landmine: s.47B(2)

Section 47B(2) of the Employment Rights Act (ERA) says:

“This section does not apply where the detriment in question amounts to dismissal.”

On a straightforward reading, that should be game over. If the detriment is the dismissal, the only proper route is an automatic unfair dismissal claim under s.103A which is a claim that cannot be brought against an individual co-worker, has a higher burden of proof and carries with it no award for injury to feelings.

So far, so simple… until Osipov arrived.

Enter Osipov

In Timis & Sage v Osipov, the Court of Appeal held that:

• a co-worker’s act of dismissing someone can itself be a “detriment” under s.47B,
• the employer is vicariously liable for that co-worker’s act, and
• s.47B(2) only stops claims against the employer for its own act of dismissal.

This meant a creative claimant could reframe the dismissal by their employer as:

“The manager who made the decision to dismiss, subjecting them to a detriment,” not only “The employer’s dismissal.”

This meant that going forwards, where someone was dismissed for making a protected disclosure, they could bring two claims arising from that dismissal:

1. a s.103A (dismissal) claim; and
2. a s.47B (detriment arising from the dismissal decision)(which can be brought against the individual decision maker and the employer).

The profession has been living with that statutory confusion ever since.

Rice v. Wicked Vision Limited and Barton Turns Developments Limited v. Treadwell: two appeals, one reluctant conclusion

This case involved different employers, different facts, different managers, but the same core question:

Can an employee treat their dismissal as a detriment and bring a claim under s.47B?

Two different Employment Appeal Tribunals gave two directly contradictory answers:

• Rice (Wicked Vision): No.47B(2) bars dismissal-related detriment claims.
• Treadwell (Barton Turns): Yes. Osipov permits them.

That conflict made the Court of Appeal’s involvement inevitable.

The Court of Appeal agreed with Barton Turns. Although the Court found Osipov to be flawed in its reasoning, it considered itself bound to follow it.

A Tale of Two Regimes:

The Court was frank in its criticism of the logic underpinning Osipov. In its view, s.47B(2) of the ERA is unambiguous: where the detriment is dismissal, a claim for a detriment should not apply. Parliament, it reasoned, had clearly set out two distinct remedial regimes:

• Part V of the ERA (s.47B) for detriment short of dismissal
• Part X of the ERA (s.103A) for dismissal cases

The two regimes involve different causation tests and different remedies. Blurring them undermines the legislative structure. The Court described the current state of the law as “plainly unsatisfactory” and concluded that the law now rests on contradictory interpretations by courts at multiple levels.

However, until the Supreme Court or Parliament intervenes, Osipov remains binding.

Implications for Employers and HR For employers and HR professionals, this decision reinforces several key risks:

1. Dual liability remains alive and well

An employee dismissed for whistleblowing may bring:

• a s.103A automatic unfair dismissal claim; and
• a s.47B detriment claim, including injury to feelings against the manager involved, with the employer vicariously liable.

2. Co-worker claims remain open

Even though s.47B(2) blocks claims against the employer for its own act of dismissal, claims against individuals (and by extension, the employer vicariously) are still permitted.

3. Legal uncertainty continues

The distance between the statute and binding case law is widening. Predicting liability, exposure and settlement values becomes harder — especially where senior staff are involved.

Next Steps: Supreme Court or Statutory Reform?

The Court of Appeal has, in effect, issued an invitation: the Supreme Court or Parliament must resolve the inconsistency. The current position produces an obvious anomaly, in that employees can bypass s.47B(2) simply by framing a dismissal as the detrimental act of a manager.

Until the law changes, employers should tread carefully. Any dismissal following a protected disclosure, and particularly any dismissal driven by a named manager may generate multiple routes of liability.

HR teams and legal advisers should ensure that:

• whistleblowing procedures are robust,
• decision-making is well-documented, and
• dismissals involving whistleblowers are scrutinised at the highest level.

Whistleblowing claims are not going to get simpler until the law is repaired. Until then, employers should tread carefully, and assume that dual claims will remain very much alive.

The link to the judgment can be found here.