WHISTLEBLOWING: DISMISSAL, DETRIMENT AND ATTRIBUTION
In Henderson v GCRM & ors the EAT has again clarified that, unlike in relation to dismissal, Tribunals should not look behind a decision-maker’s genuinely-held reason for detrimental treatment.
The Claimant (C) was dismissed by the First Respondent (R) from her employment as an embryologist. The stated reason for dismissal was conduct. C brought claims in the Employment Tribunal for “ordinary” dismissal under s.94 Employment Rights Act 1996 (ERA) and automatically unfair dismal under s. 103A ERA, as well as claims against R and against the dismissing officer (R3) alleging “detriment of dismissal” under s. 47(B) (1A) and (1B). C succeeded in her s.94 unfair dismissal claim (which was not appealed by R) but failed in her s.103A claim. Her detriment claims against R and R3 also both succeeded. In the Employment Appeal Tribunal C appealed against the s.103A decision while R3 and R appealed against the s.47(B) (1A) and (1B) decisions respectively.
There was a long history of C raising concerns about staffing issues, some of which were found to have amounted to protected disclosures, and the Employment Tribunal found that these had a “material influence” on her dismissal. C’s line manager (R2) had appointed a member of R’s HR team to investigate allegations of misconduct on the part of C and was all set to chair a disciplinary hearing following the conclusion of the investigation before the disciplinary decision maker was changed to R3, a new employee in another company within R’s group of companies, with no prior knowledge of C’s protected disclosures or involvement in the investigation. R2 continued to have an influence on R3’s consideration of the matter prior to her decision to dismiss. The Tribunal concluded that R3 genuinely believed C’s misconduct (or gross negligence) warranted dismissal, but such belief was not held on reasonable grounds nor reached following a reasonable enquiry and was not within the band of reasonable responses. However, given the genuine belief on the part of R3 (and also R2, although he also considered C to be a problematic colleague in repeatedly raising complaints and requests) in C’s in misconduct, the Employment Tribunal found that C’s protected disclosures were not “the reason, or principal reason” for dismissal, hence the failure of her s.103A claim.
C’s appeal grounds in relation to the s.103A claim were that (1) following the case of Royal Mail Limited v. Jhuti [2018] ICR 982, the Tribunal should have more forensically interrogated the witnesses and made findings of fact around whether there had been any manipulation of R3 by R2, or any presentation of a false narrative or hiding of evidence by R2 to lead R3 to her conclusion that she ought to treat C’s misconduct as grounds for dismissal, (2) if the ET had looked into these issues as fully as they ought to have done they could only have concluded that C had been automatically unfair dismissed, and (3) that if grounds (1) and (2) were accepted, the Tribunal should also find that R2’s involvement was such that he effectively caused the dismissal, even if he were not the formal decision maker, and should therefore be liable.
S. 47(B) (1A) and (1B) state as follows:
(1A) A worker (“W”) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done— (a) by another worker of W's employer in the course of that other worker's employment, or (b) by an agent of W's employer with the employer's authority, on the ground that W has made a protected disclosure.
(1B) Where a worker is subjected to detriment by anything done as mentioned in subsection (1A), that thing is treated as also done by the worker's employer.
R and R3’s appeal against the detriment decisions were on the basis that R can only be liable for detriment under s.47(B) (1B) if a worker other than the complainant is liable under s. 47(B) (1A), and that the act complained of here (R3’s decision to dismiss) was made in good faith. R3 should not be held personally liable (and Jhuti and Timis v. Osipov [2019] ICR 655) could not be combined to attribute personal liability to R3 on the basis of influence by R2) especially given the unlimited liability in detriment cases which Parliament could not have intended to be attributed to an innocent, unwitting decision-maker. If R3 were not liable it followed from s. 47(b) (1B) that R could not be liable either.
EAT decision
The EAT accepted ground 1 of C’s appeal, finding that, although the ET found as a fact that R3 genuinely believed that C was guilty of misconduct, it made reference to C’s protected disclosures having a “material influence on her dismissal” without satisfactorily dealing with questions of manipulation and invented narratives/reasons about which Jhuti required it to make findings of fact. However, given the clear findings regarding R3’s genuinely held reasons for dismissal, the EAT did not accept that a finding of automatically unfair dismissal inevitably followed from its acceptance of ground 1, so ground 1 was remitted back to the original Employment Tribunal to make appropriate findings of fact and grounds 2 and 3 were refused.
The Tribunal accepted R and R3’s appeals regarding the s.47(B) claims and pointed out that C had only pleaded dismissal as a detriment, rather than claiming any pre-dismissal detriments, so the Tribunal was restricted to dealing solely with the question of dismissal and who made the decision to dismiss.
Comment
One suspects that the original Tribunal will come up with rather more water-tight findings to support its original decision regarding the automatically unfair dismissal claim under s.103A ERA. C may reflect on whether she could have claimed any pre-dismissal detriments attributable to her line manager.
Although in this case there was no finding of automatically unfair dismissal, this case is a reminder for employers that, in whistle blowing cases, where a decision to dismiss is manipulated by someone other than the decision maker, using false narratives/reasons or by hiding relevant evidence, Tribunals can look behind the stated reasons for dismissal to the motivation of the bad actor influencing the dismissal, and find that the reason or principle reason was the fact that the claimant had made protected disclosures. It reinforces the need to maintain impartiality and objectivity at all stages of an investigation, and disciplinary process.
Where disciplinary decision makers are being influenced by others in the organisation or coming under pressure to reach a certain conclusion, alarm bells ought to be ringing, and the motivation of those seeking or suggesting a particular outcome should be investigated. Employers can at least take some comfort from the clarification that, in relation to whistleblowing detriments, an innocent and lawful ground for detrimental treatment cannot be usurped by the unlawful motivation of an influencing colleague who is not the decision maker, which means the risk of the employer being found liable for the detriment due to such unlawful motivation is also removed.