Ms Henderson, an embryologist, was dismissed for misconduct by GCRM Ltd in February 2022 after she made a number of disclosures about staffing issues. Her line manager appointed an investigating officer and at an investigation meeting Ms Henderson rejected an attempt to negotiate a termination package made by her line manager. She was subsequently subject to a disciplinary proceeding and dismissed by another manager employed by a different company in the group.
She brought claims of ordinary unfair dismissal and under s94 Employment Rights Act 1996(ERA)automatic unfair dismissal against her employer on grounds that she had made protected disclosures (s. 103A ERA). She also claimed that her dismissal amounted to a detriment for whistleblowing on the basis that her line manager had created a false pretext for her dismissal and had manipulated the dismissing manager to dismiss her (S. 47B (1A) ERA). Her claim that she had been subject to a detriment was brought against her employer (S. 47B (1B) ERA), line manager (second Respondent) and dismissing manager (third Respondent)
An employment tribunal upheld her claim for ordinary unfair dismissal on the ground that while the dismissing manager had a genuine belief it was not held on reasonable grounds nor after a reasonable enquiry neither was the decision to dismiss within the band of reasonable responses). It also upheld her claim that she was subject to a detriment for whistleblowing by both her employer and the dismissing manager but dismissed her claim for automatic unfair dismissal.
Ms Henderson appealed against the finding she was not automatically unfairly dismissed. The employer and managers appealed against the finding that she had been subject to a detriment.
Key Issues
Whistleblowing and "Tainted Information" (s.103A)
In Royal Mail v Jhuti [IRLRXXX] the Supreme Court held that if a senior manager in the hierarchy of responsibility to the employer determines that the employee should be dismissed for making a protected disclosure but deliberately and dishonestly conceals the real reason for dismissal behind a fictious one from the dismissing officer, the tribunal should look behind the fictitious reason and attribute the real principal reason to the employer even if the fictious reason was adopted in good faith by the decision maker. Only an employer can be liable for a claim for automatic unfair dismissal under s. 103A. However, a co-worker may be liable for a claim that for the detriment of dismissal.
In this case the Tribunal accepted the dismissing manager genuinely believed Ms Henderson was guilty of misconduct but that she had been heavily influenced by the line manager, who had been motivated by Ms Henderson’s disclosures.
However, the tribunal found that while the protected disclosures had a material influence on the mind of the dismissing manager, they were not the sole or principal reason for dismissal.
The Detriment Claims (s. 47B (1A) and s. 47(1B))
The Tribunal applied the reasoning in Jhuti to the detriment claims under s.47B, finding both the first and third respondents liable.
The EAT
The EAT upheld Ms Hendersons appeal against the finding she was not automatically unfairly dismissed under s. 103A ERA. It found that the tribunal had failed to properly apply Jhuti. In particular, it had failed to make clear findings about whether her line manager had improperly manipulated the dismissing manager through his involvement in the disciplinary process or created a false pretext for the dismissal which he induced the dismissing manager to adopt in order to hide the real reason.
The EAT dismissed the detriment claims against the dismissing manager and the employer on the basis that it had not been Parliament’s intention to impose unlimited liability on an innocent manager who was not personally motivated to dismiss. Liability under s.47B(1A) requires personal motivation by the protected disclosure—not merely acting on information influenced by another. As the claim against the dismissing manager failed there was no act that could be treated as also having been done by the employer s. 47B (1B).
Why This Matters
This case reinforces the boundaries of whistleblowing protections under ERA. While manipulation in dismissal can render it automatically unfair under s.103A, only those personally motivated by disclosures can be liable for detriment under s.47B(1A). The decision clarifies that Jhuti cannot be used to extend liability under s.47B to otherwise innocent parties. It may also be appropriate in some cases for a direct claim to be made against the employer for a pre-dismissal detriment under s. 47B (1).
