G Treadwell v Barton Turns Development Ltd

Employment Rights Act 1996, section 47B(2), excludes a claim against an employer for its own act of dismissal. It does not exclude a claim that an individual co-worker subjected an employee to the detriment of dismissal by participating in the decision, nor a vicarious-liability claim against the employer for that act.

An Employment Tribunal is bound by that construction in Timis and Sage v Osipov [2018] EWCA Civ 2321. An amendment which adds that legal characterisation to facts already pleaded may be a re-labelling exercise. The amendment jurisdiction remains governed by the balance of injustice and hardship, including the case’s complexity and any prejudice.

The claimant, an events manager with insufficient service for an ordinary unfair-dismissal claim, alleged that she was dismissed because she made protected disclosures. Her ET1 advanced automatic-unfair-dismissal and related claims under the Employment Rights Act 1996.

Before a preliminary hearing, she sought short amendments to plead protected-disclosure detriments by a director, including dismissal, and the employer’s vicarious liability. The Employment Tribunal allowed amendments concerning two alleged detriments but refused the dismissal amendment. It considered that section 47B(2) prevented a detriment claim based on dismissal.

The claimant appealed that refusal. The respondent cross-appealed against the amendments that had been allowed. The central issue was whether the dismissal amendment was legally available and whether the other amendments were merely re-labelling of the facts already pleaded.

1. The claimant’s appeal was allowed and the respondent’s cross-appeal was dismissed. The Employment Tribunal erred by refusing the proposed amendment concerning dismissal. The EAT ordered that amendment to paragraph 13 to be allowed.

2. Timis and Sage v Osipov [2018] EWCA Civ 2321 bound the EAT. Its clear effect was that section 47B(2) of the Employment Rights Act 1996 excludes only a claim against the employer for its own act of dismissal. It does not preclude a section 47B(1A) claim against a co-worker who was party to the decision to dismiss, with vicarious liability of the employer under section 47B(1B).

3. The EAT was neither bound nor required to treat as persuasive Wicked Vision Ltd v Rice [2024] ICR 675, which had reached the contrary conclusion when considering concurrent dismissal and detriment claims. The Employment Judge’s construction of Osipov was therefore an error of law.

4. The amendments allowed by the Employment Tribunal were properly described as re-labelling. Read with the pleaded facts, they necessarily alleged the respondent’s vicarious liability for the director’s acts. Although the pleading could have been clearer, the case was at the low end of complexity. The tribunal could readily identify and formulate the issues at the final hearing, and no prejudice or hardship was identified. The same reasoning applied to the dismissal amendment once the error on Osipov was corrected.

The EAT observed that the practical consequence of permitting the dismissal detriment amendment was likely to concern an injury-to-feelings award if the claimant succeeded.

• Employment Appeal Tribunal: Allowed the claimant’s appeal, dismissed the respondent’s cross-appeal, and ordered the proposed section 47B dismissal amendment to be allowed: [2024] EAT 137.
• Employment Tribunal: At a telephone preliminary hearing, allowed two detriment amendments as re-labelling but refused the proposed amendment alleging detriment by dismissal.