Ian Rice v Wicked Vision Limited

Under the Employment Rights Act 1996, the Court of Appeal held that it was bound by Timis v Osipov [2018] EWCA Civ 2321. An employee may therefore amend an unfair-dismissal claim to add a claim based on a co-worker’s responsibility for dismissal, including vicarious liability against the employer, without joining the co-worker, subject to time limits and the amendment discretion. The court nevertheless stated that, if free to decide the issue, it would have rejected Osipov’s construction. On its preferred reading, section 47B(2) applies to the whole of section 47B and excludes a Part V claim where the detriment is substantively the employer’s dismissal and the loss claimed is consequential on it. Adding a detriment label to facts already pleaded is ordinarily relabelling.

These conjoined appeals concerned applications to amend whistleblowing unfair-dismissal claims under section 103A of the Employment Rights Act 1996 to add detriment claims under section 47B based on dismissal by a co-worker.

In Wicked Vision, the Employment Tribunal allowed the amendment, but the Employment Appeal Tribunal allowed the employer’s appeal: [2024] EAT 29. In Barton Turns, the Employment Tribunal allowed amendments concerning non-dismissal detriments but refused to add dismissal as a detriment. The Employment Appeal Tribunal allowed the employee’s appeal and dismissed the employer’s cross-appeal, relying on Osipov: [2024] EAT 137.

The central issues were whether the tribunals were bound by Osipov and whether a dismissal-based detriment claim could be added without joining the co-worker. Barton Turns also raised whether three further amendments were merely relabelling.

1. Disposition. The appeal in Wicked Vision was allowed. The appeal in Barton Turns was dismissed. The judgment was given as the judgment of the Court.
2. Binding authority. The Court of Appeal held that Osipov [2018] EWCA Civ 2321 bound both the Employment Tribunals and the Court of Appeal. Its interpretation of section 47B(2) permitted an employee to rely on section 47B(1A) against a co-worker for the detriment of dismissal and on section 47B(1B) against the employer. The same interpretation applied where the employee sought only to proceed against the employer, and joinder of the co-worker was irrelevant. Subject to discretionary matters such as any applicable time limit, the amendments should therefore have been allowed.
3. Preferred statutory construction. The Court stated that, if free to depart from Osipov, it would have done so. On its preferred reading, section 47B(2) applies to the whole of section 47B. An employee cannot bring a Part V detriment claim where the complaint is, in substance, about dismissal by the employer and compensation is sought for loss consequential on that dismissal. The inquiry concerns whether the detriment is substantively dismissal, whether the loss is consequential on dismissal or was suffered beforehand, and whether the employer dismissed the employee. The Court agreed with Melia v Magna Kansei Limited [2005] EWCA Civ 1547 that pre-dismissal loss is not removed from Part V. A limited company necessarily acts through human beings, but there is no relevant distinction between dismissal by the employer and dismissal by a co-worker. Section 47B(1B) would in any event treat the co-worker’s act as also done by the employer.
4. Further amendments. The discretion to allow amendments requires consideration of all the circumstances, a balance between the hardship of allowing and refusing the amendment, attention to the nature of the amendment, and consideration of limitation where a new complaint or cause of action is introduced. The three Barton Turns amendments added no new facts and merely identified existing allegations as detriments. They were therefore a classic relabelling exercise and were rightly allowed, even if technically treated as a new cause of action.

• Court of Appeal (Civil Division) — In [2025] EWCA Civ 1466, the Wicked Vision appeal was allowed and the Barton Turns appeal was dismissed.
• Employment Appeal Tribunal — In [2024] EAT 29, the employer’s appeal in Wicked Vision was allowed. In [2024] EAT 137, the employee’s appeal in Barton Turns was allowed and the employer’s cross-appeal was dismissed.
• Employment Tribunals — In Wicked Vision, the amendment to add dismissal as a detriment was allowed, subject to time-limit issues. In Barton Turns, amendments concerning non-dismissal detriments were allowed, but the amendment concerning dismissal was refused.