Whistleblowing protection and liability of innocent decision makers

In the case of Henderson v GCRM Ltd & Ors [2025] EAT 136, the Employment Appeal Tribunal (EAT) considered whether the Jhuti principle extends to detriment claims under section 47B Employment Rights Act 1996 ("ERA 1996") for which employees can be personally liable.

What is the Jhuti principle and when does it apply?

The Jhuti principle, established by the Supreme Court in Royal Mail Group Ltd v Jhuti [2019] UKSC 55, allows tribunals to look past the stated reason for dismissal (by a disciplinary officer or panel) when a manager deliberately manipulates evidence or hides the real reason for dismissal (whistleblowing) behind a fictitious one, so that an innocent dismissing officer, acting in good faith, adopts the manipulated or fictitious reason.

This principle prevents employers from escaping liability when whistleblowing motivates dismissal but is concealed behind misconduct allegations.

Henderson v GCRM Ltd & Ors

The Claimant, an embryologist, made numerous disclosures to managers about staffing issues between August 2019 and August 2021. Her line manager initiated disciplinary proceedings in August 2021 for serious negligence/gross misconduct relating to process lapses in the lab and the use of the wrong type of media for handling patient eggs. 

After a failed attempt to agree an exit package, the Claimant was dismissed (following a disciplinary process) by a senior manager employed by a different company within the Employer’s group, who was unaware of the Claimant’s earlier whistleblowing, genuinely but mistakenly believing she was guilty of misconduct. The Claimant brought:

1. A claim of automatically unfair dismissal under S103A ERA against the Employer, and
2. Claims for the detriment of dismissal under S47B(1A) ERA against her line manager and the dismissing manager and under S47B(1B) against the Employer.

Employment Tribunal decision

The Tribunal found that the Claimant had made protected disclosures which had a "material influence" on her dismissal. However, the Tribunal concluded that whilst the protected disclosures materially influenced the dismissal, they were not the “sole or principal reason” required for automatic unfair dismissal under S103A. Therefore, the claim of automatically unfair dismissal under s103A against the Employer was dismissed.

For the S47B detriment of dismissal claims, applying Jhuti, the Tribunal found that the Claimant’s line manager's improper motivations could be imputed to the innocent dismissing manager, making both the dismissing manager personally liable under S47B(1A) and the Employer liable under S47B(1B). As the Claimant’s line manager did not take the decision to dismiss the Claimant, the claim against them was dismissed.

The Claimant, Employer and dismissing manager appealed against the findings.

The EAT's decision

The EAT allowed the Claimant’s appeal on the automatic unfair dismissal claim. Despite making a number of general observations about the role of the line manager, who the Employment Tribunal found had been a “key influence” in the disciplinary process and had “guided and influenced” the dismissing manager, the Tribunal failed to make clear findings about whether the line manager had improperly manipulated the dismissing manager through his involvement or created a false reason for dismissal to hide the whistleblowing motivation. This point was therefore remitted back to the Employment Tribunal for a further hearing.

The EAT also allowed the Employer’s and dismissing manager’s appeals in relation to the S47B detriment claims. The EAT was satisfied that a “composite approach” to liability is unacceptable in principle in a S47B(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 (i.e. an employee’s whistleblowing allegations). By extension, the Employer could not be held vicariously liable under S47B(1B) in the circumstances. 

However, the EAT observed that there is no reason in principle why Jhuti could not, in appropriate circumstances, apply to a direct claim against an employer for non-dismissal detriment in terms of S47B(1). Therefore, if a manager deliberately manipulates evidence or hides the real reason (whistleblowing) behind a fictitious one, so that an innocent disciplinary officer, acting in good faith, adopts the manipulated or fictitious reason and imposes a sanction short of dismissal (such as a final written warning), the Employer could potentially be liable. 

Key takeaways for employers

Evidence of genuine misconduct concerns

It is important for managers reviewing investigation reports, in order to decide whether a disciplinary hearing should be convened or not, and for disciplinary hearing officers (or those who sit on Disciplinary Hearing Panels) to ensure that there is clearly documented evidence of alleged wrongdoing on the part of the employee before disciplinary proceedings or hearings are commenced.

This will be of fundamental importance where the individual has made protected disclosures so that it can be demonstrated that the process was prompted by genuine misconduct concerns and were not caused by the making of the employee’s protected disclosures.

Dismissing officers should thoroughly interrogate the evidence

The Tribunal highlighted that the dismissing manager had "little or no knowledge" of the allegations in terms of why they were deemed serious examples of potential misconduct, the details of what happened or even the context around them. Independent decision-making with proper scrutiny of evidence is therefore essential. In a case such as this, it is usual for the employee to advance what they believe to be the real reason for the disciplinary process. 

A disciplinary officer (or panel) would then need to give close attention to those allegations in the process to assure themselves about how they related if at all to the subsequent conduct allegations when considering the real reason for the disciplinary proceedings.

Frequently, in claims brought for unfair dismissal the dismissing officer will need to give evidence about their decision and it is therefore important that they understand the allegations and can provide a clear articulation of them and their reasons for dismissal.     

Document decision-making processes carefully

Clear records demonstrating that the dismissing officer reached independent conclusions based on genuine evidence – rather than relying heavily on materials prepared by those responsible for initiating the process – will be crucial in demonstrating that the decision was their own and not materially influenced by others. 

Training

Disciplining officers are often asked to evaluate complex allegations and evidence and we therefore recommend that training is provided so that the person making the decision fully appreciates the nature of their task and their role. Employment Tribunals frequently ask about training received by those involved in disciplinary proceedings and therefore training will always be helpful in defending an Employment Tribunal claim which arises from a decision to dismiss.

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