In this case, the EAT held that a manager who took the decision to dismiss an employee, but was unaware of the employee's protected disclosures, could not be held personally liable for the whistleblowing detriment of dismissal.
Background
Under whistleblowing laws, an employee's dismissal will be considered automatically unfair if the sole or principal reason for the dismissal is that the employee made a protected disclosure. Only the employer can be liable for automatically unfair dismissal.
In addition, under a separate provision of the legislation, workers have the right not to be subjected to any detriment by their employer or a colleague on the grounds that they have made a protected disclosure. In cases where the detriment is imposed on the employee by the colleague, the colleague can be held directly liable and the employer vicariously liable for the detrimental treatment. Following the decision of the Court of Appeal in Timis v Osipov, this can include the detriment of dismissal.
In the case of Royal Mail Group v Jhuti, the Supreme Court held that an employer could be liable for automatic unfair dismissal of a whistleblower where the decision-maker did not know about the employee's protected disclosure, but was manipulated to dismiss by a more senior manager who did know of it. In those circumstances, the tribunal should look behind the "tainted information" relied on by the innocent decision-maker to identify the real reason for the dismissal.
The main question in the present case concerned whether this concept of "tainted information" should also apply in whistleblowing detriment claims, where that would impose personal liability on an innocent manager.
Facts
Ms Henderson was employed by GCRM Ltd as an embryologist. Between 2019 and 2021, she made various protected disclosures about staffing issues to managers within GCRM Ltd.
In August 2021, Ms Henderson's line manager (the second respondent) appointed an investigating officer from HR, Ms Young, to investigate allegations of misconduct against Ms Henderson. Ms Henderson was suspended on full pay pending investigation of the misconduct allegations.
A disciplinary process was initiated based on the report of Ms Young's investigation. The second respondent had intended to conduct the disciplinary hearing himself. However, when the hearing was rescheduled, he was unavailable and had to appoint an alternative manager (the third respondent) to conduct the hearing.
The third respondent was senior to the second respondent and was employed by a sister company of GCRM Ltd. She had only recently joined the organisation and was not aware of Ms Henderson's disclosures. Following the disciplinary hearing, the third respondent decided to dismiss Ms Henderson for misconduct.
Ms Henderson brought claims in the employment tribunal alleging that:
- Her dismissal was due to her protected disclosures and was therefore automatically unfair
- She had been subjected to detriment (specifically, the detriment of dismissal) by the second and third respondents, and the first respondent was also vicariously liable for this detriment under the relevant legislation
- Her dismissal was in any event unfair on ordinary principles
The tribunal dismissed Ms Henderson's claim for automatically unfair dismissal, but upheld her ordinary unfair dismissal claim. It found that the third respondent had a genuine belief in Ms Henderson's misconduct, but that belief was not based on reasonable grounds following a reasonable investigation, and the dismissal decision was outside the range of reasonable responses.
On whistleblowing detriment, the tribunal held that the second respondent had not taken the decision to dismiss, so could not be held liable for the detriment of dismissal. However, it determined that the third respondent's dismissal decision had been materially influenced by the second respondent, whose actions had been at least partly based on Ms Henderson's protected disclosures. The tribunal considered that the principle in Jhuti should apply, so both the third respondent and GCRM Ltd were liable for the detriment of dismissal on the ground of protected disclosures.
Ms Henderson, GCRM Ltd and the third respondent all appealed.
EAT decision
The EAT allowed Ms Henderson's appeal on the issue of automatically unfair dismissal. The tribunal had found that the second respondent shaped the disciplinary investigation and guided the process, and that the third respondent's dismissal decision was guided and influenced by the second respondent and Ms Young. In light of those findings, the tribunal should have engaged directly with the Jhuti question of whether or not the second respondent had induced the third respondent to adopt a false reason for the dismissal based on tainted information. The EAT remitted this issue to the tribunal for further consideration.
Turning to the detriment claims, the EAT rejected Ms Henderson's argument that the tribunal ought to have found the second respondent liable for the detriment of dismissal by interpreting the term "dismissal" to include actions that caused or contributed to dismissal by a different manager. To do so would be to blur the line between pre-dismissal detriment and the detriment of dismissal itself.
However, the EAT allowed the respondents' appeal. It considered that the tribunal had been wrong to extend the application of the Jhuti principle to claims of whistleblowing detriment and so impose liability on the third respondent and GCRM Ltd. In the context of a legislative scheme which makes the individual decision-maker directly liable and the employer vicariously liable, it would be wrong in principle to attribute the knowledge and motivation of another to an innocent decision-maker. Parliament could not have intended to impose potentially unlimited liability on innocent individuals who were not personally motivated by an employee's protected disclosures.
What does this mean for employers?
This case provides helpful reassurance for disciplinary decision-makers, confirming that they will only be held personally liable for whistleblowing detriment if they were personally motivated by the employee's protected disclosures. The fact that they might unknowingly have been influenced by another manager with malign motives will not be enough to impose liability upon them.
For employers in such circumstances, however, the risk of liability for automatically unfair dismissal remains, based on the Jhuti concept of tainted information. In order to reduce risk, employers should ensure that investigations and disciplinary processes are conducted by managers without prior involvement in the employee's disclosures. Decision makers should be encouraged to test the reliability of the evidence provided to them and ensure that their decisions are thoroughly documented.
