Wicked Vision Ltd v I Rice

The Employment Appeal Tribunal held that an Employment Judge erred in granting permission to amend a claim so as to add a complaint under section 47B(1B) of the Employment Rights Act 1996 that the employer was vicariously liable for a co-worker's act which "subjected the claimant to the detriment of dismissal". Section 47B(2) disapplies the section where the detriment in question amounts to dismissal within the meaning of Part X, and the proposed amendment in this case concerned a detriment that amounted to dismissal and therefore was barred by section 47B(2). The court considered the scope and effect of the 2013 amendments to section 47B (including subsections (1A)–(1E)) and the relationship between section 47B and section 103A (automatic unfair dismissal) of the ERA 1996.

The tribunal analysed and applied Timis v Osipov and Royal Mail Group Ltd v Jhuti. It distinguished Timis as not deciding the specific question whether an employer could be sued under subsection (1B) in circumstances where no concurrent claim was pursued against the individual alleged to have committed the detrimental act. Because the case could properly be advanced under section 103A, section 47B(2) barred the amendment. The appeal was allowed and the amendment permission dismissed.

Background and parties: The appellant, Wicked Vision Limited, is a company owned by Mr Strang. The respondent, Mr I Rice, was employed as Head of UK Sales from 19 December 2017 until his dismissal on 18 February 2021. The dismissal was recorded as redundancy. Mr Rice alleged that the dismissal was due to his protected disclosures about alleged breaches of the Coronavirus Job Retention Scheme and brought unfair dismissal and automatic unfair dismissal claims under sections 94 and 103A of the Employment Rights Act 1996.

Procedural posture: At a case management preliminary hearing on 22 October 2021 the claimant sought to amend his claim to add detriment complaints under section 47B. The Employment Judge deferred a final decision and, on 8 July 2022, EJ Butler granted permission to amend to add a single allegation that the claimant was "dismissed" by a co-worker (Mr Strang) and that the company was vicariously liable under section 47B(1B). Wicked Vision opposed the amendment as barred by section 47B(2) and/or time-barred. The company appealed the grant of permission to the Employment Appeal Tribunal.

Issues:

• Whether section 47B(2) of the ERA 1996 bars a claim against an employer under section 47B(1B) where the alleged detriment amounts to dismissal within the meaning of Part X, particularly where no concurrent claim is pursued against the individual co-worker under section 47B(1A).
• The proper construction and relationship between section 47B (as amended by the Enterprise and Regulatory Reform Act 2013) and section 103A (automatic unfair dismissal).

Reasoning: The EAT reviewed the statutory framework including Part IVA and Parts V and X of the ERA 1996 and the 2013 amendments (subsections (1A)–(1E) to section 47B). It examined Timis v Osipov and recognised Timis as authority that a claim can be brought against an individual co-worker under section 47B(1A) even if the act amounts to dismissal, but concluded that Timis did not establish a ratio permitting an employer to be sued under subsection (1B) in all cases without a concurrent individual claim. The EAT emphasised that section 47B(2) disapplies section 47B where the detriment amounts to dismissal within Part X and that where the same complaint can properly be pursued under section 103A (automatic unfair dismissal) the claimant may not re-package it as a section 47B claim against the employer. The court also relied on the reasoning in Royal Mail Group Ltd v Jhuti to show Part X's reach in covering dismissals caused by earlier detrimental conduct. Applying these principles, the EAT held that the proposed amendment complained of a detriment amounting to dismissal and so was barred by section 47B(2).

Outcome: The Employment Appeal Tribunal allowed the appeal and substituted a decision dismissing the claimant's application to amend.

Appeal allowed. The EAT held that section 47B(2) disapplies section 47B where the detriment amounts to dismissal under Part X, and therefore the Employment Judge erred in permitting an amendment to plead a vicarious liability claim under section 47B(1B) that in substance amounts to dismissal and could properly be pursued under section 103A. The amendment permission was dismissed.

Appeal to the Employment Appeal Tribunal from a decision of EJ Butler at Manchester Employment Tribunal (permission to amend granted on 8 July 2022). The EAT gave judgment on 4 March 2024, Neutral Citation [2024] EAT 29.