Frontline UK Employment Law Update Edition 41 2025 - Case Updates

1. Rice v Wicked Vision and Barton Turns Developments Limited v Treadwell  [2025] EWCA Civ 1446 [LINK]

In these joined cases, the Court of Appeal (“CA”) decided that employees can bring whistleblowing detriment claims under s47B of the Employment Rights Act 1996 (“ERA”) against their employer, where the alleged detriment is their dismissal, in addition to or instead of automatic unfair dismissal claims under s103A ERA.

In both cases, the Claimants were dismissed by their employers and brought automatic unfair dismissal claims, alleging that the reason for their dismissal was that they had made protected disclosures. Both Claimants later applied to amend their claims to include whistleblowing detriment complaints and relied on the detriment of dismissal, for which they alleged the Respondents were vicariously liable. 

This is a technical area but as a reminder of the legal framework, ERA protects whistleblowers from being dismissed or subjected to a detriment by their employer because they have “blown the whistle” on specified categories of wrongdoing. Under ERA, employees and workers may bring whistleblowing detriment claims against their co-workers and their employer may be held vicariously liable for the co-worker’s actions. However, ERA excludes detriment claims by employees, if the detriment amounts to dismissal. There has been some legal uncertainty over the scope of this exclusion, and whether an employer can be vicariously liable for detrimental treatment carried out by its employees, if the alleged detriment is dismissal. 

Both cases were appealed to the CA, which decided it was bound by a previous CA decision in Timis v Osipov [2018] EWCA Civ 2321. In that case, the CA decided that an employer could be vicariously liable for a decision to dismiss made by its employee, despite the exclusion in ERA. It concluded that the exclusion in the ERA prevented an employee bringing a whistleblowing detriment claim (where the detriment is their dismissal) directly against their employer.

The CA therefore allowed both Claimants to amend their claims to include both an automatic unfair dismissal claim and a claim that their dismissal was a whistleblowing detriment for which the employer was vicariously liable. Whilst the CA decided it was bound by Osipov, it disagreed with the CA’s interpretation of the legislation in that case and stated that, had it been free to depart from that decision, it would have done so. Permission to appeal to the Supreme Court has since been granted. 

Unfortunately, this case does nothing to resolve the uncertainty in the law on whistleblowing claims involving dismissal. Currently, as established by Osipov, employees bringing claims alleging they were dismissed because of a protected disclosure can plead both whistleblowing detriment and automatic unfair dismissal. This gives employee claimants the benefit of a less stringent causation test (the protected disclosure need only be a “material influence” on the dismissal rather than the “reason or principal reason” required for an unfair dismissal claim) and the ability to claim compensation for injury to feelings, which is not available in an unfair dismissal claim.  The Supreme Court will ultimately clarify the issue in due course. However, for now, employers will continue to face both types of claims.

2. Micro Focus Ltd v Mildenhall [2025] EAT 188 [LINK]

In this case, the Employment Appeal Tribunal (“EAT”) clarified the meaning of the European Court of Justice (“ECJ”)'s decision in UQ v Marclean Technologies SLU when considering the circumstances in which collective redundancy consultation obligations under s188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”) are triggered.

The Claimant was dismissed by reason of redundancy by his employer. He brought claims for both unfair dismissal and a protective award for failure to collectively consult under s188 of TULRCA.

The Employment Tribunal (“ET”) found that he had been unfairly dismissed and awarded a full 90-day protective award for failure to collectively consult, relying on Marclean to direct itself that an employer must look backwards and forwards over a 90-day period from the dismissal date to determine whether there were 20 or more redundancies over that period, so as to trigger collective consultation obligations.

Upon appeal, the EAT allowed the appeal on the collective consultation issue. The EAT decided that Marclean deals only with the issue of counting dismissals for the purposes of defining “collective redundancies” under Article 1 of the Collective Redundancies Directive, and is not relevant to the issue of whether an employer is “contemplating” the requisite number of dismissals over a 90-day period for the purposes of Article 2 of the Directive. Accordingly, Marclean is not relevant to the question of whether an employer is “proposing” 20 or more dismissals over a 90-day period (the corresponding domestic concept under UK law) in s188 of TULRCA, which triggers the requirement for collective consultation.

The EAT also decided that the ET had misapplied Marclean. Whether 20 or more redundancies were “proposed” required a focus on what the employer was “proposing” for the future at the material time. There was no requirement to look forwards and backwards 90 days to determine whether collective consultation obligations had been triggered. The EAT also held that a retrospective interpretation would conflict with s188(3) of TULRCA, which provides that “no account” shall be taken of employees where consultation has already begun. In addition, it confirmed that only redundancies proposed by a single employer should be counted. The EAT therefore returned the case to the ET to determine whether the employer had at any stage been “proposing” to dismiss 20 or more employees within a period of 90 days.

The decision clarifies that, where redundancies are proposed in batches, Marclean does not require previous redundancies to be combined with subsequent redundancies over a 90-day rolling period for the purposes of determining whether the s188 duty has been triggered. However, the EAT emphasised that tribunals should be alert to employers’ attempts to circumvent collective consultation obligations and astute to see through the artificial division of dismissals into batches. Tribunals may legitimately infer that an employer was, at some stage, “proposing” sufficient collective dismissals to trigger the duty from the fact that such dismissals subsequently occurred within a 90-day period.

From a practical perspective, employers will welcome the confirmation that the collective consultation threshold is assessed on a forward-looking basis, however where there are batches of redundancies totalling 20 or more within a 90-day period, tribunals will carefully scrutinise what was in the mind of the employer and whether there was at any time a forward-looking proposal to dismissal 20 or more employees within the relevant period. Employers would therefore be wise to record their rationale for redundancies and the associated timing of these carefully.  Finally, it is worth noting that the Employment Rights Act 2025 will change the thresholds for collective consultation obligations from 2027 (although the specifics of the new threshold are not yet confirmed at the time of writing).