These two cases are about the same legal point. The ERA provides for two different causes of action for dismissal (s103A) and detriment (s47B). A s.47B detriment claim cannot be used when the detriment in question amounts to a dismissal as there is a different cause of action for dismissal claims. Only an employee can be dismissed so a worker who loses their job needs to bring a s47B detriment claim. However, since Osipov, employees have been able to bring a s.47B detriment claim for the decision to dismiss taken by a co-worker, in addition to (or instead of) a s.103A dismissal claim.
Mr Rice and Ms Treadwell were both dismissed after raising concerns. Quoting Osipov, both ran a s.47B detriment claim for having been subjected to the detriment of a co-worker’s decision to dismiss them, for which the employer was vicariously liable.
In Wicked Vision, the EAT accepted that a worker can hold the employer vicariously liable for detriments by an individual co-worker under s.47B(1B). However, the EAT then said that where the detriment amounts to an unfair dismissal and where the employee can bring a dismissal claim under s.103A, they cannot bring a detriment claim for the decision to dismiss under s.47B. Osipov was significantly restricted: “dismissal as detriment” claims could only be brought in cases where liability under s.103A was not possible. In Osipov, a s.103A claim was not possible because the company was bankrupt. In Wicked Vision, as the company and the co-worker were essentially the same (the decision-maker was the owner of the company) and as the company was not insolvent, Mr Rice was able to bring a s.103A claim and therefore could not also bring a s.47B claim for the decision to dismiss.
In Treadwell, a few months later, a different EAT went the other way and ruled against the employer. The judge stated that the EAT was bound by Osipov: employers can be held vicariously liable for the detriment of dismissal under s.47B detriment claims. The judge also held that he was not obliged to consider Wicked Vision as a binding precedent or even a persuasive authority. It is possible for an employee to bring a s.47B claim against an individual coworker for subjecting them to the detriment of dismissal, and to bring a claim of vicarious liability for that act against the employer. All that s.47B excludes is a claim against the employer in respect of its own act of dismissal.
Both cases have been joined and will be heard by the Court of Appeal in early 2025. Protect has been granted permission to intervene.