The case of Timis and another v Osipov is a Court of Appeal decision which considered the personal liability of non-executive directors where an employee was dismissed for whistleblowing allegations.
Mr Osipov was employed as a Chief Executive Officer for an oil exploration company. Shortly after his employment started, he made a number of protected disclosures about the corporate governance and compliance with foreign law relevant to the company. He was subsequently dismissed and brought claims alleging he had been subjected to detriments and unfairly dismissal as a result of raising the protected disclosures.
His claims for detriment were brought against the company and two individuals, Mr Timis and Mr Sage, who were non-executive directors of the company. They had made the decision to terminate his employment and communicated this to him.
The Employment Tribunal found that the principal reason for his dismissal was that he had made protected disclosures and, as such, the decision to dismiss him was unfair. It further held that Mr Timis and Mr Sage had subjected Mr Osipov to a detriment and they were held to be jointly and severally liable to compensate Mr Osipov for his losses suffered as a result of his dismissal. This loss was calculated by the Employment Appeal Tribunal at £2,003,972.35.
The case was appealed to the Court of Appeal on the basis that (1) the detriment was a dismissal within the meaning of the unfair dismissal claim and, as such, neither Mr Timis and Mr Sage could not be liable and (2) Mr Timis instructed Mr Osipov to be dismissed, so Mr Sage could not be liable.
The Court of Appeal dismissed both grounds of appeal. It held that it is open for an employee who is subjected to a detriment of dismissal to bring a claim against an individual co-worker where s/he has made a protected disclosure and they are not precluded from recovering losses caused by dismissal from the individual.
Furthermore, it held that it is not uncommon for more than one person to be party to a decision to dismiss. In this situation, the decision had been discussed and agreed with Mr Sage so he was also liable.
This case clearly demonstrates that individuals can be personally and financially liable for their actions against whistleblowers and is a reminder to take care when making decisions.
Evans v Xactly Corporation Limited
The second case of interest this month is that of Evans v Xactly Corporation Limited. This is an Employment Appeal Tribunal decision which considered whether the reference to an employee as “a fat ginger cat” amounted to harassment.
Mr Evans was employed as a sales representative with Xactly Corporation Limited for around 11 months. His employment was ended due to poor performance. He brought several claims against the employer, including one of harassment on the ground that he had been called a “fat ginger pikey.” He alleged his diabetes amounted to a disability under the Equality Act 2010 and that the term “fat” arose from this disability. Furthermore, he had close links with the traveller community and therefore alleged that the ‘pikey’ reference was linked to his association with the community, which amounted to race.
The Tribunal accepted that the comment was derogatory, demeaning, unpleasant and potentially discriminatory and harassing. However, when considering whether it amounted to harassment, it considered the context in which it was made, and the relationship Mr Evans had with the company and employees. It found that Mr Evans actively participated in the culture of banter and, at the time the comment was made, he did not react or complain. As such, the tribunal concluded that (1) the comments were not unwanted, (2) they did not have the purpose or effect of violating Mr Evans dignity or creating an intimidating or offensive environment and (3) in any event it would not have been reasonable for him to have considered his dignity was violated or the environment was hostile given the circumstances and context. As such, it concluded that the treatment did not amount to harassment.
The decision was appealed to the Employment Appeal Tribunal who upheld the decision.
