In Rice v Wicked Vision Ltd [2025] EWCA, the Court of Appeal (CA) were asked to consider the application of the decision in Osipov v Timis & Sage [2018] EWCA (Osipov), which held that a claim for the detriment of dismissal can be brought against a co-worker despite the wording in s.47B(2) Employment Rights Act (ERA). The CA detailed why they believe that Osipov is an incorrect interpretation of the law but eventually held that they were bound by precedent to follow the decision. However, they have invited the Supreme Court or Parliament to resolve this situation, so,  whilst the position has been clarified for now, there is significant uncertainty in this area. ,

Summary of the relevant law:

  • S.103A ERA provides that where an employee is dismissed for making a protected disclosure, this is an automatically unfair dismissal.
  • S.47B(1) ERA provides that a worker has a right not to be subject to detriment by their employer for making a protected disclosure. S.47B(1A) ERA protects a worker from any act of detriment by a co-worker, and s.47B(1B) ERA makes the employer vicariously liable for the acts of their employee’s detrimental actions.
  • S.47B(2) ERA then states that this section does not apply where (a) the worker is an employee, and (b) the detriment in question amounts to dismissal (within the meaning of Part X). (Part X ERA contains the provisions relating to unfair dismissal, including s.103A.)

Since 2018, the case of Osipov stated that the wording in s.47B(2) only applies to prevent an employee bringing a claim directly against their employer for the detriment of dismissal under s.47B(1), and they are open to bring a claim against their co-workers (s.47B(1A)), and vicariously against their employer (s.47B(1B)), for any detriment caused by a decision or recommendation which culminates in dismissal alongside bringing a claim for s.103A automatically unfair dismissal.  Employees may wish to bring claims under both s47B(1A) in addition to a claim under s103A as there is a lower causation threshold in relation to detriment and the ability to recover injury to feelings arising from the dismissal.

The facts

  • In this case, Mr Rice had been dismissed by Mr Strang, both an employee of and the owner of Wicked Vision (WV). Mr Rice initially only brought a claim for s.103A automatically unfair dismissal on the basis that he was dismissed for making protected disclosures.  However, he then amended the claim to include liability under s.47B(1B) against WV. Notably, he did not bring a direct claim against Mr Strang under s.47B(1A).
  • WV appealed to the Employment Appeal Tribunal (EAT) in relation to this amendment to the claim.  The EAT construed the decision in Osipov very narrowly as applying only to claims under s.47B(1A) (whereas this case only related to s.47B(1B)). They held that the wording of s.47B(2) meant that Mr Rice could not bring a claim under s.47B(1B) whilst also bringing a s.103A claim. Mr Rice appealed to the CA.
  • The CA joined this case with the case of Barton Turns Development Ltd v Treadwell which also questioned the application of the Osipov judgement but reached a different conclusion.

Court of Appeal judgement:

The CA considered the Osipov judgement. In Osipov, Underhill LJ had found that s.47B(2) did not exclude all claims for detriment amounting to dismissal, but instead only excluded claims necessarily against the employer, so only applied to s.47B(1). It is worth noting that in Osipov, the employer itself was insolvent by the time the case was heard, so there was no option for recourse under s.103A. Instead, the claimant was able to bring a s.47B(1A) claim directly against the employees who dismissed him, Mr Timis & Mr Sage, who were covered by directors’ indemnity insurance.

In Rice v Wicked Vision, the CA objected to Underhill’s judgement in Osipov. They held that the wording in s.47B(2) is not ambiguous and makes it clear that it is a question of substance, which would prevent a claim being brought under s.47B where the complaint is in substance related to dismissal. If Parliament had intended s.47B(2) to only apply to s.47B(1), the CA held that they would have stated this in the legislation, as other parts of this legislation include exclusions that only apply to certain subsections.  However, despite this disagreement, the CA held that it was bound by the decision in Osipov even though it is contrary to their own construction. As such, they applied the Osipov judgement to allow a claim for the detriment of dismissal under s.47B against a co-worker and against the employer vicariously for the acts of their worker regardless of the wording in s.47B(2).

However, the judgement ended with the CA stating: “it is plainly unsatisfactory that the construction of this legislation has now produced conflicting decisions at three levels of court, but that can only be resolved by the Supreme Court or by amendment to the legislation.” With this, the CA has invited an appeal into its decision, and their judgement has opened the door for Osipov to be overruled.

What this means going forwards:

  • In the meantime, this means that the judgement in Osipov is still binding, and employees dismissed for bringing protected disclosures can bring both a claim for s.103A unfair dismissal along with a s.47B(1B) detriment claim.
  • For employers, this judgement does not yet have a significant impact. For now, at least, it is clear that Osipov will bind the lower courts, and claims can be brought against employers for any detriment caused by their employees, include the decision to dismiss. S.47B(1D) provides a defence for employers from vicarious liability if they can show that they took all reasonable steps to prevent a worker subjecting another to detriment, so employers should ensure that they have clear wording to this effect in their whistleblowing policies, including covering dismissals for protected disclosures. 
  • However, going forward the law should be considered uncertain in this area until further clarification is provided by either the Supreme Court or Parliament, and changes to the interpretation of Osipov may now be on the horizon.

The full judgement can be found here: Rice v Wicked Vision Ltd [2025] EWCA Civ 1466 (14 November 2025)

Thank you to Emma Torok for all her help in preparing this post.