Much
has been written recently about employment status including bogus
self-employment, atypical workers, zero hours contracts and about vicarious
liability in the law of torts and employment law. The case under discussion
does not deal with these issues but with related interesting issues involving
categorization of working people into employees and workers so as to determine
the remedy for whistleblowing under statute and with whether liability in that
area of law can be both direct and vicarious. To understand the case one needs
to appreciate that the law of unfair dismissal as set out in the Employment
Rights Act 1996 applies only to ‘employees’ and therefore both those classified as ‘workers’ and as independent contractors
do not; however, workers, though not independent contractors dismissed solely
or principally for one of the reasons which would be potentially unfair (prima facie invalid) may have a different remedy when the
claim is one of whistleblowing. In relation to vicarious liability under the
relevant statute, the Employment Rights Act 1996, there was on the facts of the
case to be discussed no doubt that the employers were vicariously liable, but
could they also be directly liable? The authority below demonstrates that
because of the scheme of the Act both that a worker dismissed for
whistleblowing has a remedy not for unfair dismissal because he is not an
employee but for ‘detriment’, the detriment being put
through a disciplinary process. This preserves the law since 1 January 1972
that remedies for unfair dismissal are granted only to those classed as
employees. In respect of vicarious liability, as this commentary shows, both
direct and vicarious liability are available against employers in a whistleblowing
case. The consequences of these decisions are noted at the end.