Sean Coleman v Sytner Group Limited — 2020

At a preliminary hearing on 28 January 2021, Employment Judge Rachel Broughton considered the claimant's application to amend his whistleblowing case. The underlying proceedings pleaded protected disclosures, detriments under s.47B ERA 1996, unfair dismissal under ss.94 and 98 ERA 1996, and automatic unfair dismissal under s.103A ERA 1996. The disputed amendment was to plead that Mr Steve Dickinson took the decision to dismiss the claimant on or about 14 January 2020 as an additional detriment.

The respondent argued that a dismissal-as-detriment claim could not be brought directly against the employer unless the claimant first sued the individual decision-maker, relying on Timis v Osipov and Kong v Gulf International Bank. The tribunal rejected that interpretation. It held that s.47B(2) bars a claim against an employer in respect of its own act of dismissal, but does not prevent a whistleblowing detriment claim based on a co-worker's or agent's act of dismissal for which the employer may be vicariously liable.

Applying Selkent, Cocking and Abercrombie, the tribunal found that the dismissal detriment point was already pleaded, the same facts were relied on, and the amendment was no more than further particularisation. It noted that Mr Dickinson was accepted to be the dismissing officer, the respondent had already answered the allegation in its response, and the final hearing remained listed for 4 to 8 October 2021. The tribunal therefore allowed the amendment and declined to add Mr Dickinson as a respondent; no substantive liability or remedy was determined.