Whistleblowing and Unfair Dismissal: Key Legal Principles
Under the Employment Rights Act 1996, an employer may be liable for automatic unfair dismissal if the sole or principal reason for dismissal is that the employee made a protected whistleblowing disclosure. Employees also have the right to not be subjected to a detriment by their employer or a colleague on the ground that they have made a protected disclosure. Colleagues can be personally liable for any detriment suffered as a result of whistleblowing, including dismissal, however, the employer may also be held vicariously liable for those actions.
The Royal Mail v Jhuti Precedent
In the 2018 case of Royal Mail v Jhuti, the Supreme Court held that an employer can be liable for automatic unfair dismissal where the dismissing manager was unaware that the employee had made a protected disclosure but was influenced by tainted information received from another manager who did have knowledge of the whistleblowing. The tainted information must take the form of deliberately manipulated evidence or a fictitious reason for dismissal.
Henderson v GCRM Ltd & Ors: A New Challenge
In Henderson v GCRM Ltd & Ors, the Employment Appeal Tribunal (EAT) recently had to consider whether the principle in Jhuti could be extended to impose personal and vicarious liability for whistleblowing detriment where an “innocent” senior manager’s decision to dismiss was based on manipulated information received from the employee’s line manager.
Ms Henderson was employed by GCRM Ltd as an embryologist. She made a number of protected disclosures about staffing issues which her line manager was aware of. This line manager instigated an investigation to consider allegations about Ms Henderson’s conduct, which led to disciplinary proceedings. The disciplinary hearing was heard by a more senior manager who was unaware of Ms Henderson’s protected disclosures and took the decision to dismiss her for misconduct.
Ms Henderson brought claims for automatic unfair dismissal against GCRM Ltd. She also brought a claim against her line manager and the senior dismissing manager for the detriment of dismissal and alleged that GCRM Ltd was vicariously liable for their actions.
Employment Tribunal and EAT Findings
Ms Henderson’s automatic unfair dismissal claim failed because the Employment Tribunal was not persuaded that her protected disclosures were the principal reason for dismissal.
The Employment Tribunal also ruled that Ms Henderson’s line manager was a key influence in the senior manager’s decision to dismiss her. Applying the tainted information principle in Royal Mail v Jhuti, the Tribunal held that the dismissing manager was personally liable and GCRM Ltd vicariously liable for the detriment of dismissal.
The Employment Tribunal also upheld the detriment of dismissal claim against the the senior dismissing manager, but found that Ms Henderson’s line manager was not liable for the detriment of dismissal because he had not personally taken the decision to dismiss her. Applying the tainted information principle in Royal Mail v Jhuti, the Tribunal held that the dismissing manager was personally liable, and, applying section 47B(1B) of the Employment Rights Act 1996, GCRM Ltd vicariously liable for the detriment of dismissal.
The Appeal and Clarification of Liability
On appeal, the EAT held that the Tribunal’s reasoning on automatic unfair dismissal was flawed because it had not applied the principles in Jhuti correctly. The Tribunal had found that Ms Henderson’s line manager had shaped and informed the disciplinary process and caused the decision of the senior dismissing manager to dismiss. However, the Tribunal had failed to make clear findings on whether there was manipulation of evidence or a false pretext for dismissal. This issue was remitted to the same Tribunal for further consideration.
The EAT also held that the Tribunal had been wrong to impose liability on the dismissing manager and GCRM Ltd by extending the principle in Jhuti to whistleblowing detriment. Parliament could not have intended to impose such wide liability on innocent individuals who were not personally motivated by an employee’s protected disclosures. A composite approach to liability combining one person’s act with another person’s motivation was unacceptable in principle. The “innocent” senior manager could not therefore be personally liable for the detriment of dismissal on the basis of the line manager’s motive and, therefore, neither could GCRM Ltd.
This case illustrates the potential complexities of whistleblowing claims, particularly where there are allegations of fabricated or manipulated evidence. Employers may still be liable for automatic unfair dismissal in tainted information cases. However, managers will only be personally liable for whistleblowing detriment if they themselves were motivated by an employee’s protected disclosures, and not if they were unknowingly influenced by false or manipulated information from another manager.
