Wicked Vision Ltd v I Rice

Section 47 B(2) of the Employment Rights Act 1996 excludes an employee’s detriment claim where the pleaded detriment is a dismissal within Part X. That exclusion applies to an employer-only claim which characterises the dismissal as a co-worker’s act and seeks to impose vicarious liability under section 47 B(1B).

The question is whether the complaint can be advanced as an automatic-unfair-dismissal claim under section 103A, not whether the two causes of action have identical causation tests or remedies. The absence of a concurrent claim against the co-worker is not decisive.

The claimant alleged that the appellant company dismissed him for making protected disclosures concerning furloughed employees. He brought claims for unfair dismissal and automatic unfair dismissal under section 103A of the Employment Rights Act 1996.

The Employment Judge allowed an amendment adding a complaint that the company was vicariously liable under section 47 B(1B) for its owner, said to be a co-worker, subjecting the claimant to the detriment of dismissal. The company appealed on the construction of section 47 B(2).

The central issue was whether an employer could face that vicarious-liability detriment claim where the sole alleged detriment was dismissal.

1. Appeal allowed. The amendment application was dismissed. Section 47 B(2) provides that section 47 B as a whole does not apply where an employee’s detriment amounts to dismissal within Part X of the Employment Rights Act 1996.

2. Timis v Osipov established that section 47 B(2) does not prevent proceedings against an individual co-worker under section 47 B(1A) for responsibility for a dismissal. The Court of Appeal’s observations that employer vicarious liability could follow were not part of its ratio. The present case concerned only a claim against the corporate employer.

3. The owner’s acts in the company’s business were, on the pleaded facts, the company’s acts. Treating him as a co-worker for the purpose of a section 47 B(1B) claim created only a technical distinction. The complaint was in substance one already advanced, and capable of being advanced, as automatic unfair dismissal under section 103A.

4. The different causation tests and remedies under sections 47 B and 103A did not alter that conclusion. Section 47 B(2) depends on whether the alleged detriment amounts to a Part X dismissal, rather than on the prospective outcome of either claim. A concurrent claim against the co-worker was not a statutory precondition, but its absence was not the basis of the decision.

• Employment Appeal Tribunal: allowed the employer’s appeal and substituted a decision dismissing the claimant’s amendment application.

• Employment Tribunal, Manchester: on 8 July 2022, Employment Judge Butler granted permission to amend the claim to add the section 47 B detriment allegation.