| In a recent case called Henderson v GCRM and others, Ms Henderson made protected disclosures (whistleblowing). Later, she was dismissed for alleged misconduct. The decision-maker (R3) did not know about her protected disclosures, but relied upon input from her line manager (R2), who did.
She brought several claims:
- Automatic unfair dismissal under s103A of the Employment Rights Act 1996 against her employer (GCRM)
- Whistleblowing detriment (specifically, detriment by way of dismissal) against R2 and/or R3 (s47B(1A))
- That GCRM should be vicariously liable for the dismissal detriment under s47B(1B)
The Employment Tribunal:
- Dismissed the s103A automatic unfair dismissal claim
- Found R2 was not liable for detriment of dismissal – because they did not make the dismissal decision
- Found R3 (the actual decision-maker) liable for detriment of dismissal
- Found GCRM vicariously liable for that detriment through s47B(1B)
Following appeal and cross-appeal, the Employment Appeal Tribunal held:
- s103A claim: The tribunal hadn’t properly considered the Jhuti principle – i.e. whether R2 manipulated the process or created a false reason which R3 (innocently) relied on. This point was sent back for reconsideration.
- The person who dismissed was R3 so the tribunal was correct to find that the complaint of dismissal detriment against R2 could not succeed.
- The tribunal should not have applied Jhuti to the detriment of dismissal claim against R3 (imputing R3’s innocent act of dismissal with the motivation of R2 who was influenced by whistleblowing). The result was potentially unlimited liability on an innocent party (R3).
- Since R3 wasn’t liable, GCRM could not be liable for the detriment of dismissal either under s47B(1B).
Any business considering potential dismissal should always consider whistleblowing disclosures carefully and bear this case in mind.
Proper training for managers in this area remains key. |
