FCO v Bamieh and the Personal Liability of Co-workers in the Context of Whistleblowing

In the UK, as elsewhere, there has been a surge in legal and political interest in the protection of whistleblowers.[1] In the context of UK law, one particular recent innovation has been the introduction of co-worker liability for whistleblowing detriment, which was achieved by way the insertion of section 47B (1A) into the Employment Rights Act 1996 (“ERA”) by the Enterprise and Regulatory Reform Act 2013.[2] Prior to this innovation, the protection for making a ‘qualified disclosure’ was only available in respect of acts or omissions by employers. This left a gap in the law, whereby Claimants were not able to claim against their fellow employees or managers where those fellow workers were the source of retaliatory action for making a public interest disclosure. Hence, there could be no claim for vicarious liability in respect of those actions as against employers. This was identified as problematic in the case of Fecitt v NHS Manchester, in particular as it was out of line with other provisions concerning discriminatory treatment at work.