Section 19 of Enterprise and Regulatory Reform Act 2013

[dondada]

I really don't understand this section of the ACT

 

19 Worker subjected to detriment by co-worker or agent of employer

 

“(1A)A worker (“W”) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done—

 

(b)by an agent of W’s employer with the employer’s authority,

 

 

Let me paint two scenarios so you understand my question

 

Scene 1:

 

A worker makes a protected disclosure, the worker's employer sends an agent to act in a detrimental manner to the worker

 

 

Scene 2:

 

 

A worker makes a protected disclosure, the employer's agent, on his (agent) own initiative acts in a detrimental manner to the worker

 

 

Would the employer be vicariously liable in Scene 2, even though he (the employer) was not aware that the agent acted that way?

 

 

I would greatly appreciate relevant case law

 

 

Thanks a lot

[honeybee13]

Hi DD.

 

Is this a real case or a hypothetical one please? Are you involved?

 

HB

[dondada]

Hi DD.

 

Is this a real case or a hypothetical one please? Are you involved?

 

HB

 

 

Yes HB, it is a real case and I'm involved

[honeybee13]

But it's not your case?

 

HB

[Ethel Street]

Formatting has come out a bit confusingly:

 

19 Worker subjected to detriment by co-worker or agent of employer

 

(1) In section 47B of the Employment Rights Act 1996 (protected disclosures), after subsection (1) insert—

 

“(1A) A worker (“W”) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done—

 

(a) by another worker of W’s employer in the course of that other worker’s employment, or

 

(b) by an agent of W’s employer with the employer’s authority,

on the ground that W has made a protected disclosure. "

Does the Explanatory Memorandum issued with the Act help explain it?

 

Section 19: Worker subjected to detriment by co-worker or agent of employer

 

113. The effect of this section is to introduce a vicarious liability provision so that where a worker is subjected to a detriment by a co-worker done on the ground that the worker made a protected disclosure, and this detriment is done in the course of the co-worker’s employment with the employer, that detriment is a legal wrong and is actionable against both the employer and the co-worker.

 

114. The employer will only be liable for a detriment where it is done by a worker in the course of employment or by an agent of the employer with the employer’s authority. In this context, the term “agent” refers to someone who is appointed by the employer to perform duties on their behalf (such as a contractor).

 

115. Employers are able to rely on the defence in new subsection (1D) of section 47B of the ERA 1996 if they have taken all reasonable steps to prevent the co-worker from subjecting the whistleblower to a detriment. If the defence applies the employer will not be liable for the actions of the co-worker.

 

116. Where a whistleblower is bullied or harassed by a co-worker but the employer can use the defence in subsection (1D), the co-worker will still be liable and the worker could bring a claim against that co-worker.

[dondada]

Formatting has come out a bit confusingly:

 

19 Worker subjected to detriment by co-worker or agent of employer

 

(1) In section 47B of the Employment Rights Act 1996 (protected disclosures), after subsection (1) insert—

 

“(1A) A worker (“W”) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done—

 

(a) by another worker of W’s employer in the course of that other worker’s employment, or

 

(b) by an agent of W’s employer with the employer’s authority,

on the ground that W has made a protected disclosure. "

Does the Explanatory Memorandum issued with the Act help explain it?

 

Section 19: Worker subjected to detriment by co-worker or agent of employer

 

113. The effect of this section is to introduce a vicarious liability provision so that where a worker is subjected to a detriment by a co-worker done on the ground that the worker made a protected disclosure, and this detriment is done in the course of the co-worker’s employment with the employer, that detriment is a legal wrong and is actionable against both the employer and the co-worker.

 

114. The employer will only be liable for a detriment where it is done by a worker in the course of employment or by an agent of the employer with the employer’s authority. In this context, the term “agent” refers to someone who is appointed by the employer to perform duties on their behalf (such as a contractor).

 

115. Employers are able to rely on the defence in new subsection (1D) of section 47B of the ERA 1996 if they have taken all reasonable steps to prevent the co-worker from subjecting the whistleblower to a detriment. If the defence applies the employer will not be liable for the actions of the co-worker.

 

116. Where a whistleblower is bullied or harassed by a co-worker but the employer can use the defence in subsection (1D), the co-worker will still be liable and the worker could bring a claim against that co-worker.

 

 

Thanks for this

 

 

I still don't know the answer though

 

 

In Scene 2, I believe a situation might arise where the Worker has NO remedy

 

 

It would be a sad situation as the Maxim is quite clear; "where there is a right, there is a remedy"