Whistleblowing claims: the detriment of dismissal

Liability for dismissal detriment does not extend to line manager who did not dismiss.

Manipulation of evidence or the creation of a false reason for dismissal by a line manager who is not the dismissing manager may not make that line manager guilty of dismissal detriment under section 47B(1A) Employment Rights Act 1996 (ERA) because they did not make the decision to dismiss the worker.

Following on from our article published last month Whistleblowers are protected from suffering a detriment after termination of employment in which we looked at the various  protections afforded to workers who make protected disclosures or “blow the whistle”; in this article we delve deeper into the different whistleblowing claims which may be brought by workers under the ERA and who is liable for those claims.

In the case of Ms Ann Henderson v GCRM Limited and Others Ms Henderson brought several claims under ERA against three different Respondents. The Employment Tribunal and subsequently the Employment Appeal Tribunal had to decide, in the circumstances, which party was liable for each claim.

The Facts of the Case

Ms Henderson was employed by GCRM Ltd (the first respondent) as an embryologist. Over a two-year period she made several complaints about staffing which were accepted to be protected disclosures. Her line manager (the second respondent) was aware of these complaints.

In August 2021, an investigating officer was appointed by Ms Henderson’s line manager to look at allegations about Ms Henderson’s conduct. The parties entered negotiations to terminate her employment, but these were unsuccessful and a disciplinary process was commenced.

The disciplinary hearing was undertaken by a more senior manager (the third respondent) employed by a different group company. The third respondent had no knowledge of Ms Henderson’s previous whistleblowing complaints. Ms Henderson was dismissed by the third respondent for reasons related to her conduct.

The Claims

Following her dismissal for misconduct Ms Henderson brought the following claims under the whistleblowing provisions in Sections 47B and 103A ERA;

• against her employer (the first respondent) under section 103A for automatically unfair dismissal;

• against her line manager (the second respondent) and the manager who dismissed her (the third respondent) under section 47B(1A) for the detriment of dismissal; and

• against the first respondent under section 47B(1B) on the basis that her employer  was treated as having subjected her to the detriment of dismissal through the actions of the second and/or third respondent. In other words the employer was vicariously liable for the actions of its managers.

All Ms Henderson’s claims related to her dismissal; a detriment of dismissal claim is a claim where the detriment complained of is the act of dismissal. We consider this in more detail below.

Workers including employees are also protected from being subjected to any detriment (disadvantage) during employment on the ground that they have made a protected disclosure, sometimes called a pre-dismissal detriment. However, Ms Henderson did not complain of pre-dismissal detriment by any respondent. This was a significant oversight on her part as the facts suggest such a claim, particularly against the first and second respondent, may have been successful.

Automatic unfair dismissal

Under Section 103A ERA the dismissal of an employee is automatically unfair if the reason, or principal reason, for their dismissal is that they have made a "protected disclosure". This means the burden of proof shifts to the employer and the dismissal is assumed to be unfair unless the employer can show otherwise. In addition the two year qualifying period of service usually required for an ordinary unfair dismissal claim under section 108(1) ERA does not apply to an automatic unfair dismissals.

Also relevant was the case of  Royal Mail Ltd v Jhuti [2019] UKSC 55, in which the Supreme Court confirmed that an employer may be liable for automatically unfair dismissal as a result of protected disclosures, even where the dismissing manager was unaware of the protected disclosures. In Jhuti the employee's manager (the "manipulator") considered that Jhuti should be dismissed because she made protected disclosures, but they hid this reason behind allegations of poor performance which were applied, in good faith by another manager who took the decision to dismiss the employee. In such circumstances the Supreme Court found the real reason for the dismissal was the protected disclosures.

The ET dismissed Ms Henderson’s claim for automatic unfair dismissal on the grounds her protected disclosures were not the reason, or principal reason, for her dismissal. It considered the dismissing officer (who had no knowledge of the protected disclosures) collated sufficient evidence of misconduct during the disciplinary process to justify her dismissal.

Ms Henderson appealed the ET decision on the automatic unfair dismissal and her appeal was upheld. The Employment Appeal Tribunal (EAT) set aside the ET’s decision relating to her claim for automatically unfair dismissal, sending it back for reconsideration. The EAT found the ET had not properly considered the relevance of Jhuti and whether the second respondenthadmanipulated the evidence or created a false reason for dismissal which was applied by the innocent third respondent. At this stage we do not know the outcome of that case.

The detriment of dismissal

Claims for dismissal and detriment are often conflated and depend in part on the employment status of the claimant; for this reason claimants are often advised to bring both claims. If the claimant is an employee and the detriment complained of is dismissal, the employee cannot bring a detriment of dismissal claim directly against their employer but must instead bring an automatic unfair dismissal claim under section 103A ERA.

However, the matter is not clear cut because a claimant can still bring a detriment claim against the employer and co-workers for pre-dismissal and post dismissal detriments or they can hold an employer vicariously liable for the detriment of dismissal perpetrated by a co-worker involved in the decision to dismiss them. To succeed in the claim against the employer for detriment of dismissal the claimant must be successful in bringing a detriment of dismissal claim against co-workers too.

The Whistleblowing Commission Code of Practice lists the following examples of disadvantages that could amount to a detriment:

The examples marked with a* would amount to pre-dismissal detriments and the examples marked with a ^ would amount to post-dismissal detriments.  Both a work colleague and the employer may be liable for such detriments.

In the case of Ms Henderson, the ET decided the following;

• The second respondent (the line manager) had not personally taken the decision to dismiss Ms Henderson so he could not be liable for the detriment of dismissal.

• The claims for the detriment of dismissal against the first and third respondents were upheld (the employer and dismissing officer). The Tribunal decided (in light of cases like Jhuti) that the intentions of the second respondent (which were motivated by the protected disclosure) could be imputed to the third respondent who was therefore personally liable for the dismissal detriment claim. If that was the case secondary liability could then attach to the first respondent.

Unsurprisingly these decisions were appealed by the first and third respondents. It seems perverse that the second respondent with the alleged unlawful motivation escaped justice. At the EAT Ms Henderson argued the second respondent was the motivator behind the dismissal and in the broader sense they should be held responsible even if they didn’t make the final decision.

The Respondents successfully argued Jhuti did not apply to detriment of dismissal claims and therefore no party was liable. The EAT went on to find it could not have been Parliament’s intention when drafting section 47B(1A) to impose unlimited liability on innocent individuals where they could be unwittingly tainted by a malevolent individual.

The EAT dismissed Ms Henderson’s appeal in relation to detriment of dismissal by concluding the ET was factually correct to find that the only person who dismissed her was the third respondent. However the third respondent had no knowledge of the whistleblowing acts and therefore could not have been personally influenced by them when making the decision to dismiss. The second respondent was not responsible for the decision to dismiss and therefore could not be held personally liable for the detriment of dismissal. Therefore it followed logically that the first respondent (employer) was not vicariously liable for the detriment of dismissal because no individual was found personally liable for the detriment of dismissal.

The first respondent still has to defend its position back in the ET with regard to the automatic unfair dismissal claim under Section 103A ERA where the Jhuti case and alleged imputed knowledge of the second respondent will be considered in more detail.  

Points to consider

Whistleblowing claims can be difficult to manage and expensive to lose

The employee needs no qualifying service to bring both detriment and automatic unfair dismissal claims. Detriment claims can be brought while an employee remains employed and also as an ex-employee. An automatic unfair dismissal claim can only be brought against the employer and after termination of employment but pre and post dismissal claims for detriment and detriment of dismissal claims can be brought against co-workers, employers and even new employers.  It is important to identify the respondents, the claims against them and the issues arising; for this reason a well drafted and considered list of issues is essential once a claim is brought in the ET.

In circumstances where a person facing a disciplinary process which may result in dismissal has made protected disclosures it is very important to be able to demonstrate, through documented evidence, the real reason for dismissal and not to leave open an opportunity for the employee to argue that a protected disclosure was the reason or principal reason for dismissal.

When a fresh pair of eyes are brought to the process the new person should be able to demonstrate they were not influenced or manipulated by another colleague. This may include making any necessary enquiries to ensure there is no bias in the evidence and verifying evidence for themselves

Detriment claims may compensate the claimant for financial loss and attract an injury to feelings award similar to claims under Equality Act 2010. Claims are often brought against co-workers, even innocent colleagues. This approach can put more pressure on an employer to settle rather than subject an employee respondent to the litigation process.

Statutory defence

An employer may seek to rely on a statutory defence when faced with the allegation that it is vicariously liable for the actions of a co-worker. In such cases the employer is treated as having done the same act but has a defence if it can prove it took all reasonable steps to prevent the co-worker from acting in that way. Reasonable steps may include training the workforce and particularly managers to recognise and handle whistleblowing allegations, having in place a clear whistleblowing policy to guide and support workers when whistleblowing issues arise and applying the policy consistently when appropriate. In some circumstances employers may be reluctant to use this defence because if it is successful the co-worker could be held personally liable for the detriment treatment.

Ultimately the employer’s best defence often involves demonstrating a clear paper trail and a consistent, lawful reason for its actions unrelated to the whistleblowing.

Employers should seek specialist legal advice on the risks of whistleblowing claims at an early stage to mitigate the reputational, relational and financial risks these claims can entail.

If you would like to discuss any aspect of this article further, please contact our employment team on 0113 244 6100. 

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The information in this article is necessarily of a general nature. The law stated is correct at the date (stated above) this article was first posted to our website.

Specific advice should be sought for specific situations. If you have any queries or need any legal advice please feel free to contact Wrigleys Solicitors.