Key takeaways
Innocent decision-makers can still face liability
Employers remain accountable even without direct knowledge.
Whistleblowing protections extend beyond direct retaliation
Indirect consequences of disclosures may trigger legal claims.
Robust policies and training are essential safeguards
Clear procedures reduce risk and support fair decision-making.
Who in the decision-making chain can be held personally liable for a whistleblowing dismissal? The EAT recently considered this question.
Legal background
Workers who make protected disclosures about wrongdoing (whistleblowing) are given legal protection against dismissal and detrimental treatment. Generally, this involves consideration of whether the person who subjected the whistleblower to a detriment/dismissal was motivated by the whistleblowing. However, in limited circumstances, a tribunal can consider the hidden motivations of senior managers who have manufactured a fictitious reason to dismiss when the true reason is the whistleblowing (Royal Mail Group Ltd -v- Jhuti [2019] UKSC 55). This Jhuti principle is sometimes referred to as the ‘composite approach’, because it combines the act of one individual (the dismissal) with the motivation of a second individual (the whistleblowing).
The EAT has recently considered the scope of the liability of the innocent decision maker. Can this ‘composite approach’ be used to ascribe personal liability for a whistleblowing dismissal onto an innocent decision maker?
Factual background
H, an embryologist, was found to have made several protected disclosures about staffing issues between August 2019 and August 2021. In August 2021, H’s line manager appointed an investigating officer to investigate allegations about H’s conduct. Following an unsuccessful attempt to negotiate termination of her employment, H was suspended, and a disciplinary process was commenced. The disciplinary hearing was conducted by a more senior manager employed by a different group company, who was oblivious to H’s previous whistleblowing disclosures. Following the disciplinary hearing, this senior manager dismissed H, purportedly for conduct related reasons.
H subsequently brought various whistleblowing claims:
for automatically unfair dismissal against her employer
for the detriment of dismissal against her line manager and the senior manager, and
for the detriment of dismissal against her employer, arguing it should be vicariously liable for the actions of her line manager or the senior manager
Employment Tribunal decision
The employment tribunal held that H’s previous whistleblowing disclosures had a “material influence” on her dismissal. The line manager was held to have had a “key influence” on the senior manager’s decision making; the senior manager had been “extensively informed and guided” by the line manager, had heavily relied on him “for information and guidance” and had spoken to him during an adjournment of H’s disciplinary hearing. However, the tribunal dismissed H’s automatic unfair dismissal claim, holding that the whistleblowing disclosures were not the principal reason for H’s dismissal. The tribunal upheld H’s other claims. The parties cross-appealed.
EAT decision
The EAT firstly allowed H’s appeal on the automatic unfair dismissal claim. The tribunal had made various general observations about the role H’s line manager had in the disciplinary process, but it had failed to make clear factual findings about whether the line manager had either improperly manipulated the dismissing manager through his involvement in the disciplinary process or created a false reason for H’s dismissal to hide hidden whistleblowing motivations. Therefore, the case was sent back to the same employment tribunal to reconsider this aspect of H’s claim.
The EAT also allowed appeals from the employer and dismissing manager in relation to H’s detriment of dismissal claims. The EAT held that the ‘composite approach’ to liability (see ‘legal background’ above) is unacceptable in principle as it cannot have been parliament’s intention to impose unlimited liability upon innocent individuals who have not personally been motivated by a prohibited reason (i.e. the whistleblowing disclosures). There is no need to extend the Jhuti principle into detriment complaints and very good reason not to do so. By extension, the employer could not be held vicariously liable. The tribunal’s decision on this point was set aside and the EAT substituted a decision dismissing the detriment complaints.
In non-binding comments, the EAT also observed that there is no reason in principle why the Jhuti principle could not, in appropriate circumstances, apply to a direct claim against an employer for non-dismissal detriment (e.g. disciplinary action falling short of dismissal).
