Never a Dull Moment in Employment Law: Whistleblowing and More

by Dechert LLP

Dechert LLP

The Supreme Court’s recent decision quashing the Employment Tribunal fee regime is not the only recent employment law news of which UK employers need to be aware. This OnPoint summarises some other recent developments.

Non-Executive Directors Personally Liable for Dismissal of a Whistleblower

In International Petroleum Limited and others v Osipov and others, the Employment Appeal Tribunal (“EAT”)  found that two non-executive directors were jointly and severally liable with the employer company for some £1.7 million of compensation awarded to a whistleblower in respect of his dismissal because of the protected disclosures which he had made.

Mr Osipov was CEO of International Petroleum Limited, an oil and gas exploration company. Shortly after his appointment he made certain protected disclosures about the company’s corporate governance and legal irregularities in relation to proposed government contracts. Following Mr Osipov’s disclosures, he was subjected to a number of detriments, including being cut out of key parts of his CEO role, and ultimately he was dismissed. Two non-executive directors, who were also significant shareholders, were effectively performing managerial and executive roles in the company and Mr Osipov sought to bring his claim of unfair dismissal on grounds of whistleblowing against them as well as his employer.

Since 2013 whistleblowers have had the right to bring a claim directly against fellow workers or agents of the employer who have subjected them to a detriment because of their whistleblowing. The employing company will be vicariously liable for that claim unless it can show that it has taken reasonable steps to prevent the individuals acting as they did. This might include, for example, providing appropriate training about how to treat whistleblowers.

In Osipov, the non-executive directors argued that, whilst they could be personally liable for pre-dismissal detriments, compensation relating to the employee’s dismissal was properly dealt with only by the unfair dismissal claim against the employing company and that they could not be liable for the part of the compensation award which related to the individual’s dismissal.

The EAT disagreed on the basis that otherwise individuals could escape liability for what is likely to be the most serious detriment that a whistleblower might suffer i.e. being dismissed from their job. It would also put employees in a less advantageous position than workers. Workers who are not entitled to unfair dismissal rights may bring a claim for detriment suffered by virtue of being a whistleblower. This includes all detriments including termination of their engagement. The compensation awarded to Mr Osipov included losses flowing from his dismissal and there was no reason, in the EAT’s view, to relieve the directors of that liability. The EAT considered that to interpret the whistleblowing legislation in this way would achieve Parliament’s aim in adopting the legislation - which was to protect whistleblowers from being subjected to unlawful treatment by fellow workers. 

Combined with the recent decision on what counts as the public interest for the purposes of a disclosure attracting the protection of the whistleblowing legislation, this decision increases the risks which employers face in the context of whistleblowing complaints. Given the possibility of whistleblowing claims being brought against senior executives involved in dismissal decisions as well as the employing company, this decision reinforces the need for employers to put appropriate policies and training in place in order to seek to reduce the risk of claims and to increase the chance of the employer being able to rely on the defence that it has taken all reasonable steps to ensure that whistleblowers are treated appropriately. 

Voluntary Overtime Must be Included in Holiday Pay

In Dudley Metropolitan Borough Council v Willetts and others, the EAT held that payments for voluntary overtime must be included in the calculation of holiday pay. 

The 56 claimants in Dudley were entitled to various payments in addition to their salary – including out of hours stand-by pay; a call out allowance; voluntary overtime and mileage or travel allowance linked to those items. On the facts of the case, the Employment Judge had concluded that these payments should be included in calculating the claimants’ holiday pay on the basis that they amounted to “normal remuneration”. The EAT agreed in a decision which is unsurprising given the direction of travel over recent years in relation to the calculation of holiday pay 

The EAT observed that the overarching principle (derived from EU law) in relation to the calculation of holiday pay is that “normal remuneration” should be maintained during holiday periods in order to ensure that the worker did not suffer a financial disadvantage which would deter him from exercising his holiday rights. The fact that pay may be split into different elements should not affect this right – and each element of pay must therefore be assessed to determine whether it is “normal”. The EAT indicated that to qualify for inclusion in the calculation of holiday pay the payment must have been made over a sufficient period of time on a regular and/or recurring basis to justify the description of being “normal”. So, whilst the principle that voluntary overtime should be included in the calculation of holiday pay has now been established, there may still be uncertainty about what specifically qualifies as voluntary overtime. This will be a question of fact which will need to be considered on a case by case basis. 

Also, interestingly, the EAT addressed concerns about how fluctuating levels of overtime should be dealt with in calculating holiday pay by noting that holiday pay would be calculated by reference to the 12 week period applied in the statutory definition of a “week’s pay”. Whether employers can argue for a reference period of longer than 12 weeks on the basis that that might be more appropriate in the context of their business remains a question which the case law has yet definitively to determine.

Paid Parental Bereavement Leave Proposal Announced

On 19 July 2017 the Parental Bereavement (Pay and Leave) Bill was introduced to Parliament. This is a Private Members Bill which has the support of the Government and will establish a new right for employed parents to statutory paid leave to grieve on the death of their child. The Bill is expected to have a second reading in October but is unlikely to become law until 2018 at the earliest.

Although the proposal is only in its early stages, it is likely that the amount of leave will be at least two weeks and attract the same rate of pay as other types of family leave such as maternity, adoption paternity and shared parental leave. This is currently the lower of 90% of an employee’s gross weekly earnings and £140.98 per week. 

At present (save in relation to stillbirth or miscarriages in respect of which maternity or paternity leave may still apply), the law only allows for “reasonable” unpaid time off to deal with an emergency relating to dependants, including his or her death, and it is down to each employer to determine what is ”reasonable” in the circumstances. ACAS has published guidance on Dealing with Bereavement in the Workplace but this is a good practice guide and not mandatory for employers.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Dechert LLP | Attorney Advertising

Written by:

Dechert LLP

Dechert LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.