Rice v Wicked Vision Limited and Barton Turns Developments Limited v Treadwell
The Court of Appeal has today handed down judgment in the conjoined appeals of Rice v Wicked Vision Limited and Barton Turns Developments Limited v Treadwell, in which Tamsin Sandiford was led by Adam Solomon KC (Littleton Chambers) and Chris Milsom (Cloisters Chambers).
In Wicked Vision, the Claimant brought a claim of automatically unfair dismissal under section 103A Employment Rights Act 1996 (‘ERA 1996’) and subsequently sought to amend his claim to include a complaint of dismissal as a detriment under section 47B ERA 1996. The amendment was allowed by the Employment Tribunal.
Tamsin represented the Claimant in the Respondent’s appeal to the EAT in Wicked Vision. The Respondent appealed on a number of grounds, most notably that paragraph 91 of Timis v Osipov, relied upon by the Employment Tribunal, was obiter at best. The Respondent argued that section 47B(2) ERA 1996, which states that the section does not apply where the worker is an employee and the detriment in question amounts to dismissal (within the meaning of Part X), made the proposed amendment impermissible in law.
Bourne J allowed the appeal, holding that all that was necessary was to consider whether the detriment relied upon amounted to dismissal within the meaning of Part X ERA 1996. He held that the detriment relied upon did amount to dismissal within the meaning of Part X and substituted a decision refusing the amendment application.
The EAT’s judgment in Barton Turns was handed down after Bourne J’s decision was handed down. HHJ Barklem came to the opposite conclusion to that of Bourne J, holding that the EAT was bound by Osipov and therefore Wicked Vision was not binding nor even persuasive. HHJ Barklem held that it is open to an employee to bring a claim under section 47B based on the detriment of dismissal, for which the employer is vicariously liable, applying Osipov. The resulting appeals were heard together at a two-day Court of Appeal hearing. Lord Justice Peter Jackson, Lord Justice Coulson and Lady Justice Elisabeth Laing allowed the appeal in Wicked Vision and dismissed the appeal in Barton Turns. The Court of Appeal expressed its strong misgivings with Osipov but concluded that it was bound to follow its ratio, namely that all that section 47B(2) precludes is a claim against an employer for its own act of dismissal.
You can view the full judgment here >>>.
Tamsin Sandiford is a member of our specialist Employment Law group.
