Why the case matters
The Employment Appeal Tribunal's (EAT) recent decision in Henderson v GCRM Limited considered the relationship between the detriment provisions of the Employment Rights Act 1996 (ERA) (section 47B), and the provision which makes it automatically unfair to dismiss someone for whistleblowing (section 103A). The detriment provisions provide the employee who is subjected to a detriment with a remedy against the individual worker as well as the employer, with section 47B(1B) providing that an employer will be vicariously liable for acts of detriment by one worker towards another.
While dismissing someone may be a form of detriment, case law has not made clear whether the vicarious liability principle established by section 47B(1B) ought or can extend to acts of dismissal in so far as they constitute a detriment. Or, put another way, can a dismissing manager be personally liable for the detriment of dismissal, such as to engage the vicarious liability principles in section 47B(1B)?
We know from the case of Jhuti (Supreme Court) that where a decision-maker is influenced by another worker who has knowledge of whistleblowing, and is manipulated or deceived into dismissing the whistleblower, this dismissal is likely to be automatically unfair. The motives of the malevolent influencer may be attributed to the innocent decision-maker. However, Jhuti concerned section 103A, not 47B, and the case below suggests the analysis for each provision should be kept distinct.
The key issue before the EAT in this case was whether an 'innocent' dismissing manager may be found personally liable to a claimant under section 47(B) in a 'tainted information' case, where the decision-maker's conclusion may have been improperly influenced by a line manager who did have knowledge of the whistleblowing. The EAT clarified that it cannot have been the intention of Parliament to impose unlimited liability upon innocent individuals in this way.
Facts
Ms Henderson was employed by GCRM Limited (GCRM) as an embryologist and was dismissed in February 2022 for conduct reasons. During her employment, Ms Henderson made a number of protected disclosures primarily relating to staffing issues, which her line manager (the Second Respondent and R2), was aware of.
In August 2021, R2 appointed an investigating officer to investigate allegations about Ms Henderson's conduct. The disciplinary investigation and hearing was heard by the Third Respondent (R3), a senior manager from another group company, who was unaware of Ms Henderson's previous disclosures.
Following the disciplinary hearing Ms Henderson was dismissed on 3 February 2022. The decision to dismiss was taken solely by R3, and the reasons given all related to conduct, not to any protected disclosure. R3 was genuine in her belief that Ms Henderson was guilty of misconduct.
However, the Tribunal found that R2 had been a key influence' upon R3. R3 had little or no knowledge of the disciplinary allegations and relied extensively on information and guidance from R2 and HR, who had involvement with Ms Henderson going back months in relation to the subject matter of her protected disclosures.
Ms Henderson brought complaints of ordinary unfair dismissal and automatically unfair dismissal against her employer. She also brought claims for the detriment of dismissal against R2 and R3 under section 47B(1A), for which she sought to make GCRM vicariously liable.
Decision
The complaint of ordinary unfair dismissal succeeded on its merits. However, the complaint for automatic unfair dismissal under section 103A was dismissed, as the Tribunal was not persuaded that the protected disclosures were the 'principal reason' for the dismissal.
In relation to the detriment complaints, and having regard to the principles established by the Supreme Court in Jhuti [2019] UKSC 55 an employment tribunal concluded that R2 (who had knowledge of the disclosures) had informed and guided R3. This had a material influence upon the decision to dismiss, , and therefore R2's thought processes and motives could be imputed to R3. The Tribunal found both GCRM and R3 personally and vicariously liable under sections 47B(1A) and 47B(1B) of ERA respectively.
Both Ms Henderson and the Respondents appealed.
Ms Henderson's appeal
The EAT allowed Ms Henderson's appeal on the section 103A complaint. The Tribunal had erred in failing to engage with the correct analysis in an 'imputed motives' type case. The section 103A complaint was remitted to the Tribunal to consider those questions.
The Respondents' appeal
The EAT allowed the Respondents' appeal. The Tribunal had erred in applying Jhuti to the complaints made under sections 47B(1A) and (1B). Jhuti considered a section 103A claim and not a section 47B complaint and the approach to each should not be conflated. Such a wide approach to liability was unacceptable in principle as it cannot have been the intention of Parliament to impose unlimited liability upon innocent individuals who have not personally been motivated by a proscribed reason. There is no need to extend the ratio of Jhuti into complaints under section 47B(1A), and very good reason not to do so. The Tribunal's judgment was set aside, and the complaints against R3 and GCRM for personal and vicarious liability under sections 47B(1A) and (1B) were dismissed.
Comment
This case clarifies that when it comes to the detriment of dismissal, the principle in Jhuti, on attributing unlawful motives to an innocent party, should not be applied. It is unsatisfactory that the case law is so difficult to grasp, both in terms of when personal liability and vicarious liability may arise, also when motives should be attributed to an innocent party. Further clarification is needed from a higher court.
