Ann Henderson v GCRM Limited & Ors

These two related appeals concern sections 47B and 103A of the Employment Rights Act, 1996 (“ERA”). Those sections provide remedies for employees who have been subjected to detriment for making protected disclosures. Complaints made under them are commonly referred to as “whistle-blowing claims”.

The claimant was employed by the first respondent as an embryologist. She was dismissed in February 2022 for the stated reason of conduct. She brought complaints under sections 47B and 103A, the detail of which I will return to below. Before doing so, however, it is helpful to consider the terms of those provisions in detail and to examine how they have been interpreted.

Statutory protections for whistle-blowers were first introduced to the ERA by the Public Interest Disclosure Act, 1998. Amendments were made in 1999 and again in 2013. The full legislative history is summarised by Underhill LJ in Timis v. Osipov [2019] ICR 655. The current provisions are in the following terms:

Subsections 47B(1A) to (1E) were added by the Enterprise and Regulatory Reform Act, 2013 with effect from 25 June 2013following the decision of the Court of Appeal in NHS Manchester v. Fecitt[2012] ICR 372. Two cases which have considered the scope and application of sections 47B and 103A are of particular significance in the present appeals.

In Timis, the Court of Appeal concluded that whilst only an employer can be liable for an automatically unfair dismissal under section 103A, a worker or agent of the employer may be personally liable in a claim under section 47B(1A) for the detriment of dismissal on the ground that the claimant had made a protected disclosure. If such liability is established, the employer will also be liable by virtue of section 47B(1B), unless it is able to establish the statutory defence in section 47B(1D).

In Royal Mail Limited v. Jhuti[2018] ICR 982, the Supreme Court held that, in certain limited circumstances, the principal reason for a dismissal in a complaint under section 103A may be found to be the making of a protected disclosure, even though that was not in the mind of the dismissing officer of the employer at the time of the decision to dismiss. In broad terms, this will be the case where a manager senior to the dismissed employee deliberately manipulated evidence or hid the real reason for dismissal – the making of a protected disclosure – behind a fictitious one, such that an innocent dismissing officer, acting in good faith, adopted the manipulated or fictitious reason. In such a case, a tribunal should look past the reason relied upon by the innocent manager to identify the real principal reason for the dismissal. I will refer to such cases – as parties did in submissions – as involving a situation of “tainted information”.

The issue raised in the claimant’s appeal is whether the Employment Tribunal properly and fully considered the potential applicability of Jhuti to her section 103A complaint. The issue in the respondent’s appeal is whether the Tribunal erred in concluding that, in combination, Timis and Jhuti have the effect that an “innocent” dismissing manager may be found personally liable to a claimant in a dismissal detriment complaint under section 47B(1A) so that, in a tainted information case, the employer of the innocent manager may also be made liable under section 47B(1B).

Following her dismissal, the claimant brought a complaint of “ordinary” unfair dismissal in terms of section 94 ERA. In addition, she brought complaints based upon some of the whistleblowing provisions in sections 47B and 103A the ERA. Those complaints were:

In each of the detriment complaints against the second and third respondents under section 47B(1A) (and, by extension, against the first respondent under section 47B(1B)) the claimant relied only upon the pleaded detriment of dismissal. An application by the claimant to widen the scope of the detriments relied upon in the section 47B complaint was refused in December 2022. That decision was not appealed. The significance of that for the purpose of this appeal is that there were no complaints before the Employment Tribunal that the claimant had been subjected to pre-dismissal detriment by any respondent.

The claimant did not seek to advance a complaint of dismissal detriment against the first respondent under section 47B(1). Having regard to the terms of section 47B(2), such a claim would not have been competent.

Over a period of almost two years between 30 August 2019 and 20 August 2021, the claimant had made a number of disclosures about staffing issues to managers of the first respondent.

The second respondent was the claimant’s line manager. In or about August 2021, the second respondent appointed an investigating officer, Ms Young, to investigate allegations about the claimant’s conduct.

On 26 August 2021, a meeting took place between the claimant, the second respondent and Ms Young. During that meeting, an attempt was made – apparently initiated by the second respondent – to negotiate a termination of the claimant’s employment. At the end of the meeting the claimant was asked to leave the premises. This was, in effect, a suspension.

No agreement was ultimately reached regarding termination of the claimant’s employment. On 6 October 2021, the second respondent sent a letter to the claimant regarding the conduct allegations that were to be investigated by Ms Young. The second respondent advised the claimant that she was to remain suspended on full pay in the meantime.

Ms Young interviewed the second respondent and another employee, Ms Zujovic, about the conduct allegations and produced a report. The report led to a disciplinary process being commenced. The second respondent advised the claimant that a disciplinary hearing would be held on 20 December 2021 by Teams call. The intention was that the disciplinary hearing would be conducted by the second respondent. When the date of the hearing had to be changed to 28 January 2022, however, responsibility for the conduct of it was passed to the third respondent. The third respondent was senior to the second respondent and was employed by a different company in the group of which the first respondent was a part. She had joined the group of which the first respondent was a part on 4 January 2022 and was not aware of the history of the claimant’s disclosures.

The disciplinary hearing commenced on 28 January 2022, and was adjourned, first to 31 January, and thereafter to 3 February, when the claimant was dismissed. The decision to dismiss was taken solely by the third respondent. The reasons for dismissal were then confirmed in a letter dated 11 February 2022.

The reasons given by the third respondent for the dismissal all related to the claimant’s conduct, and not to any protected disclosure made by her. The third respondent was genuine in her belief that the claimant was guilty of some form of misconduct (whether labelled as such or as gross negligence). That was her reason for dismissing. In dismissing the claimant, the third respondent was acting as the first respondent's worker and/or its agent and with its authority under section 47(1A) ERA.

The Tribunal found, however, that the second respondent had been a “key influence” (ET § 217) upon the third respondent. It set out the basis for that conclusion in ET § 203 to 206:

The complaint of ordinary (section 94 ERA) unfair dismissal against the first respondent succeeded on its merits. The first respondent does not challenge that decision. In summary, the Tribunal concluded that whilst the belief of the third respondent that the claimant was guilty of gross misconduct / negligence was genuinely held, it was not held on reasonable grounds or after reasonable inquiry in terms of the second and third limbs of British Home Stores Ltd v. Burchell [1980] ICR 303. The Tribunal also concluded that the decision to dismiss was not within the band of reasonable responses.

In relation to the whistleblowing complaints, the Tribunal found that the claimant had indeed made protected disclosures and that, having regard to its findings of fact at ET § 203 to 205, these had a “material influence” upon her dismissal:

The second respondent:

“…also held the view that the claimant's part in the dismissal matters involved misconduct on her part, although at the same time he also considered her to be a problematic colleague in repeatedly raising complaints and requests, some [of] which were protected disclosures, and which were inconsistent with his own views, priorities and constraints.”

(ET § 217)

When it considered the section 103A complaint, however, the Tribunal was not persuaded that the protected disclosures were the “principal reason” for the dismissal:

The making of the protected disclosures:

“…was part of the overall picture but they were not the sole or principal reason for the claimant's dismissal. (ET § 213)

The complaint against the first respondent under section 103A was accordingly dismissed.

In response to a reconsideration application, the Tribunal elaborated upon its decision about the section 103A complaint in further reasons dated 10 July 2023:

In the complaint made directly against the second respondent, the tribunal concluded (ET § 207) that as he had not personally taken the decision to dismiss the claimant, he could not be liable under section 47B(1A) for the only pleaded detriment of dismissal.

In the complaint of detriment against the first and third respondents, the tribunal combined what it took to be the ratios of the decisions in Timis and Jhuti, to conclude that (a) the second respondent had informed and guided the third respondent in the process leading to the dismissal and had a material influence upon the decision; (b) the second respondent’s actions in that regard had been, at least in part, on the ground that the claimant had made protected disclosures; and (c) the thought processes and motives of the second respondent could, therefore, be imputed to the third respondent on the basis of Jhuti.

The Tribunal’s initial decision was that only the first respondent was liable (under section 47B(1B)) for the detriment of dismissal on the ground of the protected disclosures. It did not find the third respondent liable under section 47B(1A). Following a reconsideration application, however, the Tribunal revised its Judgment to find the third respondent personally liable for the dismissal detriment claim. It noted that the logic of its conclusion as to the liability of the first respondent under section 47B(1B) was that the third respondent must also be personally liable under section 47B(1A) for the detriment of dismissal. Without such primary liability under section 47B(1A), secondary liability could not attach to the first respondent at all under section 47B(1B).

The Tribunal failed, when considering the section 103A complaint, to carry out a proper analysis of what was the true reason for the dismissal (ground 1). In particular, the Tribunal failed to ask itself (as it should have done per Jhuti) whether the third respondent had “adopted” a reason for dismissal provided by the second respondent. Had it asked that question and answered it in the affirmative, it would then have had to go on to consider whether the adopted reason was invented by the second respondent and whether the reason for such invention was the making of one or more protected disclosures. Whilst the Tribunal’s thought processes at ET § 208, including its reference to the disclosures having “contributed” to the dismissal, were unclear, it seemed ultimately to have asked none of the relevant Jhuti questions.

Had the Tribunal correctly addressed the Jhuti questions, and had it applied those questions to the facts as it found them to be, the only possible conclusion would have been that the principal reason for the dismissal was that the claimant had made protected disclosures (ground 2).

In relation to the section 47B(1A) complaint against the second respondent, if grounds 1 and 2 were accepted, the second respondent’s involvement could be seen to have caused the claimant’s dismissal, even if the second respondent was not formally the decision-maker. The pleaded detriment of “dismissal” should be construed widely so as to mean “caused the claimant to be dismissed” (ground 3).

The causal significance of the disclosures was an issue of fact for the Tribunal to evaluate. It had concluded twice – once in its original reasons and again in the reconsideration decision – that the protected disclosures were not the principal reason for the dismissal. That was an evaluation of fact with which an appellate court ought not to interfere (Lambeth London Borough Council v. Agoreyo [2019] ICR 1572 at [61] to [68]). The claimant’s position in grounds 1 and 2 was undermined by the Tribunal’s conclusions at ET § 217 about the belief of the second respondent in the existence of misconduct.

In relation to ground 3, Jhuti had no role to play in section 47B detriment complaints for the reasons more fully set out in the respondents’ appeal.

The tribunal erred in considering that Jhuti was capable of being applied to a claim under section 47B(1A). In so doing, it failed to recognise the distinction between parts V and X of the ERA. Jhuti had concerned the latter but not the former. The Tribunal’s decision was also inconsistent with decisions of the Employment Appeal Tribunal and Court of Appeal, including Reynolds v. CLFIS (UK) Limited [2015] ICR 1010;Malik v. Cenkos Securities Plc UKEAT/0100/17; and William v. Lewisham & Greenwich NHS [2024] ICR 1065. On the basis of the facts found by the Tribunal, the only proper course was dismissal of the section 47B claims against the third respondent. Without individual liability under section 47B(1A), it inevitably followed that the first respondent could not be liable under section 47B(1B).

The causation test under section 47B is whether the protected disclosure materially influenced (in the sense of being more than a trivial influence) the employer’s treatment of the whistle-blower (NHS Manchester v. Fecitt and ors) at para. 45). The principle that liability may arise where one employee has influenced the decision of another has long been recognised in relation to such complaints (Ahmed v. City of Bradford Metropolitan District Council UKEAT/0145/14; Western Union Payment Services UK Limited v. Anastasiou UKEAT/0135/13); and First Greater Western v. Moussa [2024] IRLR 697). The Tribunal was, therefore, correct to apply Jhuti to the section 47B claims made in this case.

Jhuti concerned the liability of a corporate employer under section 103A. The need to discern a state of mind, such as the reason for taking action, on the part of an inanimate person such as a company was recognised as presenting difficulties of attribution (paragraph [42]). Lord Wilson JSC, who delivered the judgment of the court, considered that the key question in Jhuti was:

“which human being is to be taken to have the state of mind which falls to be attributed to the company?” (paragraph [42]).

The court approved the suggestion made by Underhill LJ in The Co-Operative Group Limited v. Baddeley [2014] EWCA Civ 658 that such attribution might occur where facts known to, or beliefs held by the actual decision-maker had:

“been manipulated by some other person involved in the disciplinary process who has an inadmissible motivation…at least where he was a manager with some responsibility for the investigation...”

In Jhuti, the court considered a particular variant of the Baddeley scenario: if a person senior in the hierarchy of responsibility to the employee determines that the employee should be dismissed for the making of a protected disclosure but deliberately and dishonestly hides the real reason for dismissal behind a fictitious one. In such a situation, the tribunal should look past the fictitious reason and attribute the real principal reason to the employer, even where the fictitious reason was adopted in good faith by an innocent decision-maker on the company’s behalf (paragraphs [46], [60] and [62]). The court in Jhuti recognised that cases of a decision being taken in good faith not just for a wrong reason but for a reason which the employee’s line manager had dishonestly constructed will be rare (paragraph 41). The same can be said of the Baddeley scenario (see Kong v Gulf International Bank (UK) Limited EA-2020-000357-JOJ per HHJ Auerbach).

The scope of Jhuti was considered by Bourne J in William at paragraph [29]:

“…since Parliament in enacting section 103A had clearly intended that a dismissal should be unfair where the making of a protected disclosure was the real reason for it, where a person superior to the claimant in the hierarchy of the organisation determined that they should be dismissed for one reason but hid it behind an invented reason, and the decision-maker adopted the invented reason, a court (or tribunal) should penetrate through the invention and identify the hidden reason as the real one.”

In each scenario – whether Baddeley “manipulation” or Jhuti “construction of an invented reason to conceal a hidden reason” – a key feature is the deliberate presentation of a false or distorted factual picture to the innocent dismissing manager by the manager who is motivated by the making of the protected disclosure. For there to be attribution of an improper reason to an innocent decision maker there must, therefore, be an element of dishonesty on the part of a manager involving concealment of the true reason behind a manipulated or invented one.

The claimant relied upon Jhuti as a basis for her section 103A complaint. Her primary position was that the second respondent had instructed the third respondent to dismiss her. The Tribunal rejected that suggestion. Given the reliance upon Jhuti, however, the Tribunal also required to consider whether the second respondent manipulated evidence or persuaded the third respondent to adopt a fictitious reason for dismissal, thereby concealing the fact that the real reason was the making of one or more protected disclosures.

The Tribunal made a number of general observations about the role of the second respondent. He was described as a “key influence” who “shaped the investigation” and “extensively informed and guided the process”. The third respondent “relied heavily upon information provided by” the second respondent and Ms Young and was “guided and influenced” by them. The second respondent had “a material influence” upon the claimant’s dismissal. That influence “filtered through into the decision [the third respondent] took”. At no point, however, did the Tribunal engage with the issue of whether there was manipulation of the evidence or the creation of a false reason. Paragraph 33 of its reconsideration reasons suggests that the Tribunal was aware of that test, but its conclusion at paragraph 34 of the reconsideration reasons that:

“… the making of protected disclosures did not occupy that level of prominence in the overall set of reasons in the mind of [the third respondent]. Even when recognising that the protected disclosures were a factor leading to her decision, and a material one, they were not the main one.”

Another equally possible interpretation of the Tribunal’s reasons at ET § 203 to 205 and 217 is that the influence of the second respondent was limited to his initiation and guidance of a disciplinary process about matters he genuinely believed amounted to misconduct. In particular, at ET § 217, the Tribunal found that the second respondent:

“…held the view that the claimant’s part in the dismissal matters involved misconduct on her part.”

If that was the extent of his influence, and in the absence of tainted information, Jhuti could not be engaged. To conclude otherwise would erroneously conflate the different issues of the second respondent’s motive for instituting a disciplinary process on the one hand with the reason for the dismissal on the other.

I agree with the submissions for the claimant that, once Jhuti had been raised as a live issue, it was incumbent upon the Tribunal to make clear findings about whether or not the second respondent had improperly manipulated the third respondent through his involvement in the disciplinary process or created a false pretext for dismissal which he induced the third respondent to adopt in order to hide a proscribed reason. It was also incumbent upon the Tribunal, if it reached that view, to explain precisely what the manipulation or invention consisted of, and clearly to identify what part it ultimately played in the third respondent’s decision to dismiss. I agree with the claimant that the Tribunal did not engage with those issues.

I do not agree, however, with the suggestion made in the second ground of appeal that, had the Tribunal asked itself the correct questions, it would inevitably have concluded that Jhuti applied and that the principal reason for the dismissal was the making of protected disclosures. As I have already noted, the Tribunal made no express finding that the second respondent manipulated evidence or created fictitious allegations of misconduct. Its reasons are, at times, arguably inconsistent with such a conclusion. It is not, therefore, inevitable that if the Tribunal had addressed the correct questions, it would necessarily have come to a different conclusion on the section 103A complaint. If, having considered the correct questions, the Tribunal had rejected any suggestion of manipulation or creation of a fictitious reason by the second respondent, Jhuti could not be engaged at all, whatever may have been the second respondent’s motives for instigating the disciplinary process. Even with such factors present, the Tribunal would still then have needed to consider the effect that they had upon the third respondent’s decision.

In relation to the third ground, I do not accept that the term “dismissed” should be taken to include action that caused or contributed to dismissal by a different manager. Such an approach would blur the line between pre-dismissal detriment and the detriment of dismissal itself. The claimant pleaded her case on the basis that the detriment imposed upon her by the second respondent was dismissal. The Tribunal rejected her contention that the second respondent instructed the third respondent to dismiss her. The claimant could have pleaded a different case of pre-dismissal detriment against the second respondent, but she did not do so. The Tribunal made a legitimate finding of fact that the only person who dismissed the claimant was the third respondent. Having reached that conclusion, the Tribunal was correct to find that the complaint of dismissal detriment against the second respondent could not succeed under section 47B(1A).

Jhuti was concerned only with section 103A. The question in this appeal is, therefore, whether the ratio of Jhuti ought also to be applied to complaints under section 47B(1A).

In common with Jhuti, the cases of Ahmed, Anastasiou and Moussa all concerned the attribution of a state of mind to a worker’s “employer”. When Ahmed and Anastasiou were decided, the 2013 amendments to section 47B had not been enacted. At that time, the only route to liability for protected disclosure detriment was under section 47B(1) against the worker’s “employer”. As is clear from Kerr J’s analysis of the particular cause of action in Moussa, it too was a claim made directly against the employer in terms of section 47B(1). I do not, therefore, accept the submissions made on behalf of the claimant that these cases are of assistance in determining the approach to be taken to attribution in a tainted information complaint made under sub-sections 47B(1A) and (1B).

The legislation under consideration in Reynolds was TheEmployment Equality (Age) Regulations, 2006.Regulation 26 dealt with the concept of “aiding” unlawful acts:

Underhill LJ concluded (at paragraph 36) that a “composite approach” to liability – combining the act of one employee with the motive of another – was unacceptable in principle:

“I believe that it is fundamental to the scheme of the legislation that liability can only attach to an employer where an individual employee or agent for whose act he is responsible has done an act which satisfies the definition of discrimination. That means that the individual employee who did the act complained of must himself have been motivated by the protected characteristic. I see no basis on which his act can be said to be discriminatory on the basis of someone else’s motivation. If it were otherwise, very unfair consequences would follow. I can see the attraction, even if it is rather rough and ready, of putting X’s act and Y’s motivation together for the purposes of rendering [the employer] liable: after all, he is the employer of both. But…[i]t would be quite unjust for X to be liable to [the claimant] where he personally was innocent of any discriminatory motivation.”

In Malik, Choudhury P concluded (at paragraph [89]) that the reasoning behind the decision in Reynolds should apply equally to whistleblowing detriment claims brought under section 47B(1A) and (1B):

“The provisions of section 47B(1A), (1B), (1C) and (1D) are indeed very similar to the provisions considered in CLFIS in relation to vicarious liability. Under section 47B, another worker can be liable for subjecting a claimant to a detriment on the ground that the claimant has made a protected disclosure. By virtue of section 47B(1B) the acts of that worker are treated as also done by the employer, irrespective of whether it was done with the employer’s knowledge or approval. However, the employer can rely upon the reasonable steps defence to avoid liability. It was the fact that the decision-maker could be personally liable (as well as the employer being vicariously so) that led to the Court of Appeal in CLFIS concluding that it would be unjust to attribute the discriminatory motivation of another to that decision-maker. I agree… that the similar scheme of vicarious liability under section 47B means that a similar approach should be taken in cases of detriment on the grounds of protected disclosure; that is to say the knowledge and motivation of another should not be attributed to the innocent decision-maker.”

At paragraph [82] of William, Bourne J rejected a submission that Malik was implicitly overtaken by Jhuti:

“The… question is whether Jhuti now shows [Malik] to have been manifestly wrong. In my judgment it does not. As Lord Wilson JSC made clear in his judgment at para. 46, the decision in Jhuti turned on the meaning and purpose of section 103A. Lord Wilson JSC compared that unfair dismissal regime with the detriment regime under section 47B at paras 54—58 and went on, at para 60, to set out the court’s decision as to ‘the reason for a dismissal for the purposes of section 103A of the Act, and indeed of other sections in Part X’. That decision does not purport to change, and does not logically change, the interpretation of section 47B...”

The parties to this appeal were agreed that the defence provided in section 47B(1E) applies only in very limited circumstances where a party has been misled as to the legal consequences of their actions, but does not apply to a tainted information case involving the invention or manipulation of facts so as to deceive an innocent actor. In that latter scenario, a claim could still be brought under section 47B(1A) against the party who invented or manipulated evidence, as well as against the employer under section 47B(1B). There is also no obvious reason in principle why Jhuticould not, in appropriate circumstances, apply to a direct claim against an employer for non-dismissal detriment in terms of section 47B(1).

I see no reason, however, to depart from the conclusions reached in each of Reynolds, Malik and William that a “composite approach” to liability is unacceptable in principle in a section 47B(1A) complaint because 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. The purposive approach to the legislation in both Timis and Jhuti reflected, in each case, the need to provide the claimant with an effective remedy. That purposive approach provides whistle-blowers with a full and effective range of causes of action and remedies for protected disclosure detriment without liability ever having to be imposed upon a wholly innocent party. There is no need to extend the ratio of Jhuti into complaints under section 47B(1A), and very good reason not to do so.

In these circumstances, I agree with the submissions made on behalf of the first and third respondents that the Tribunal erred in law by applying Jhuti to the complaints made under sub-sections 47B(1A) and (1B). It follows that it erred in finding the first and third respondents responsible liable for those complaints.

In terms of ground 1 of the claimant’s appeal, I will set aside paragraph 2 of the Tribunal’s judgment and remit the complaint under section 103A ERA to the same Tribunal for it to consider and apply all elements of Jhuti.

Grounds 2 and 3 are each refused.

In the respondents’ appeal, I will set aside paragraph 3 of the Tribunal’s Judgement of 10 July 2023 (as amended following reconsideration). As no other conclusion is possible on the facts found by the Tribunal, I will substitute a decision dismissing the complaints under section 47B(1A) against the third respondent and under section 47B(1B) against the first respondent.