International Petroleum Ltd & Ors v Osipov & Ors

A disclosure may contain both information and an allegation. Whether it is a disclosure of information depends on its context. A worker need only hold a reasonable belief that the information tends to show a relevant failure and that disclosure is in the public interest. A relatively small affected group may satisfy the public-interest requirement.

For detriment under Employment Rights Act 1996, a protected disclosure must materially influence the treatment. An employee may pursue dismissal only against the employer under Part X, but a fellow worker or authorised agent may be liable under Part V for a detriment consisting of an instruction or recommendation to dismiss, including consequential loss.

The Employment Tribunal upheld claims by the claimant, the former chief executive of International Petroleum Ltd, for whistleblowing detriments and automatic unfair dismissal. It found that he had made protected disclosures concerning tendering, corporate governance, unlawfully held data and an advisory agreement, and that he was progressively excluded and then dismissed because of them.

The company and two individuals appealed on the protected-disclosure, causation, liability and remedy findings. The claimant cross-appealed on the status of two individuals and aspects of compensation. The central issues included the scope of individual liability for whistleblowing detriments connected with dismissal, worker status, and the proper calculation of compensation.

1. The appeals were dismissed save for the company’s conceded ground concerning liability for detriments done by Dr Lake, and the claimant’s cross-appeal succeeded in part. The finding that the company was liable for acts of Dr Lake and Mr Matveev could not stand while they had been found not to be workers or agents. The issue whether Mr Matveev was a worker was remitted.

2. The Tribunal was entitled to find that the four communications were protected disclosures. It had considered their full context. The claimant reasonably believed that the disclosures tended to show failures to comply with legal obligations, including corporate-governance, tendering, data and contractual obligations. Its compressed language did not show that it had applied an incorrect public-interest test. The disclosures concerned interests wider than the claimant’s private employment interests.

3. The correct test under section 47B is whether the protected disclosure materially influenced the detrimental treatment. Although the Tribunal sometimes used imprecise expressions such as a detriment arising from a disclosure, its judgment as a whole showed that it examined the reasons in the minds of the relevant decision-makers. Its findings and permissible inferences established that the claimant was treated as an obstacle because of his disclosures.

4. Section 47B(2) excludes an employee’s dismissal claim against the employer from Part V where it is a dismissal within Part X. It does not exempt a fellow worker or authorised agent from liability under section 47B(1A) for a detriment, such as an instruction or recommendation to dismiss, which is not itself a Part X unfair-dismissal claim. Compensation for loss flowing from that unlawful detriment, other than the statutory basic award, could therefore be recovered jointly and severally from the employer and the responsible individuals. The ACAS uplift could also apply to their award.

5. The Tribunal adequately found Dr Lake was neither a worker nor an agent. Its reasons for finding Mr Matveev was not a worker were inadequate, because its findings pointed both ways and did not explain the client-or-customer conclusion.

6. The Tribunal had erred in construing the contractual annual increase. The claimant was guaranteed a minimum 10% annual increase. His housing allowance and golden-parachute award also had to be recalculated by reference to the applicable contractual figures.

• Employment Appeal Tribunal: The respondents’ appeals from the London Central Employment Tribunal were largely dismissed. The claimant’s cross-appeal succeeded on Mr Matveev’s status and specified compensation issues.
• Employment Tribunal: Judgments promulgated on 6 April 2016 and 5 December 2016 upheld whistleblowing detriment and automatic unfair-dismissal claims, made compensation awards, and held the company, Mr Timis and Mr Sage jointly and severally liable for pre-dismissal detriments.