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Tags: case update, Henderson v GCRM Ltd, Whistleblowing
Categories: Employment Law
Background: The Employment Rights Act 1996 (‘ERA’) provides protection for both employees and workers in the event they ‘blow the whistle’ (i.e. report a concern about wrongdoing in the workplace – known as a protected disclosure). In particular:
In Timis v Osipov the Court of Appeal held that s.47B(2) ERA prevents an employee from bringing a whistleblowing detriment claim against their employer where the alleged detriment is the dismissal itself. However, the employee may still pursue such a claim against an individual co-worker involved in the dismissal. This decision was affirmed by the Court of Appeal in Wicked Vision (see our update on this decision in this Newsletter).
In Royal Mail Limited v Jhuti (see our update here) the Supreme Court established that where the reason for a dismissal given in good faith by the dismissing manager turns out to be a fictitious reason (due to another manager manipulating the facts) it is the hidden reason (rather than the fictitious reason) that is the true reason for a dismissal. This principle prevents employers from escaping liability when whistleblowing motivates dismissal but is concealed behind misconduct allegations.
Facts: The employee, Ms Henderson, worked as an embryologist for the employer. She raised several concerns about clinical procedures and staffing levels with her line manager, which the Tribunal later found to be protected (whistleblowing) disclosures.
Sometime after she had made disclosures, allegations of gross misconduct were made against her for failing to maintain liquid nitrogen levels in a tank and for using the wrong fertilisation medium. She was dismissed following investigation and a disciplinary hearing. The disciplinary chair who decided to dismiss her had no knowledge of her whistleblowing disclosures and relied heavily on information provided by Ms Henderson’s line manager.
Ms Henderson brought an automatic unfair dismissal claim against the employer, and a detriment claim against her line manager and the chair of the disciplinary hearing personally, alleging they had subjected her to a detriment by dismissing her for blowing the whistle.
Tribunal decision
The Tribunal found that the employee had made protected disclosures and that these had a material influence on her dismissal. However, this did not meet the higher threshold for automatic unfair dismissal under s103A ERA, which requires the protected disclosure to be the sole or principal reason for dismissal. That claim was therefore dismissed.
In respect of the detriment claims and applying Jhuti, the Tribunal held that the line manager’s improper motives could be attributed to the otherwise innocent dismissing manager. This meant the dismissing manager was personally liable and the employer vicariously liable for the detriment. However, because the line manager did not make the decision to dismiss, the claim against him personally was dismissed.
Ms Henderson and the employer appealed.
EAT decision
Ms Henderson’s appeal: The EAT allowed Ms Henderson’s appeal on the automatic unfair dismissal claim. The Tribunal failed to make clear findings about whether the line manager had improperly manipulated the dismissing manager by hiding the whistleblowing motivation. This point was therefore remitted back to the Tribunal for further consideration.
The employer’s appeal: The employer argued the Tribunal was wrong to conclude that Osipov and Jhuti meant that the innocent dismissing manager could be found personally liable under Section 47B(1A) ERA and therefore make the employer also liable under Section 47B(1B). The EAT agreed – Jhuti had only been concerned with an employer’s liability for automatic unfair dismissal under s103A ERA and the state of mind that can be attributed to the employer. There was no reason to extend this analysis to liability to personal liability under Section 47B(1A) ERA and it could not have been the intention of Parliament to impose unlimited liability on innocent individuals.
Implications: In summary, for automatic unfair dismissal claims under s.103A ERA, Tribunals may look behind an invented or manipulated reason and find that the hidden whistleblowing reason was in fact the sole or principal reason for dismissal. This prevents employers from avoiding liability through the actions of a manager who conceals the true motive.
However, for detriment claims against individuals under s.47B(1A) ERA (and any resulting vicarious liability for employers under s.47B(1B) ERA) the Tribunal should not attribute the manipulator’s knowledge or motives to an otherwise innocent decision-maker. Doing so would unfairly expose individuals (and in turn employers) to liability for whistleblowing detriment where they were not personally motivated by the protected disclosures.
In practice, managers must ensure there is clear, documented evidence of genuine allegations of misconduct before starting disciplinary action, particularly where the employee has made protected disclosures. Dismissing managers must independently scrutinise the evidence and understand the allegations, as they may need to justify their decisions at tribunal.
Good record-keeping is essential to show that the decision by the dismissing manager was genuinely their own and not influenced by others. Training for dismissing managers is also important, as Tribunals frequently ask about training received by those involved in disciplinary proceedings and can use this in assessing the fairness of a dismissal.
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