Ann Henderson v GCRM Limited & Ors

For an automatic unfair-dismissal complaint under section 103A of the Employment Rights Act 1996, a tribunal must determine whether an apparently innocent dismissing officer adopted a reason dishonestly manipulated or invented by another manager to conceal a protected-disclosure reason. General influence over a disciplinary process does not, without findings of tainted information or a false pretext, establish that proposition.

That attribution principle does not extend to claims under section 47B(1A). Liability for dismissal detriment requires the worker or agent who performed the act complained of to have been personally motivated by the protected disclosure. A composite approach which combines one worker’s act with another’s motive would unjustly impose liability on an innocent individual.

The claimant, an embryologist, was dismissed for stated conduct reasons after making protected disclosures. The Employment Tribunal upheld her ordinary unfair-dismissal claim. It dismissed her automatic unfair-dismissal claim under section 103A of the Employment Rights Act 1996, but upheld dismissal-detriment claims against the dismissing manager and the employer under sections 47B(1A) and 47B(1B).

The claimant appealed the dismissal of the section 103A claim. She contended that the Tribunal had failed to address whether her line manager had manipulated the disciplinary process or induced the dismissing manager to adopt a false reason. The employer and dismissing manager appealed the section 47B findings, contending that the Tribunal had wrongly combined the act of an innocent dismissing manager with another manager’s proscribed motive.

1. The claimant’s appeal was allowed in part and the respondents’ appeal was allowed. The section 103A claim was remitted to the same Tribunal. The section 47B(1A) and 47B(1B) dismissal-detriment claims were dismissed by substituted decision.
2. Under Royal Mail Ltd v Jhuti, a tribunal deciding a section 103A claim must look beyond an innocent dismissing officer’s stated reason where a manager in the relevant hierarchy deliberately manipulated the evidential picture or invented a reason to conceal that dismissal was really because of protected disclosures. The necessary feature is dishonest concealment through false, distorted or manipulated information. Such cases will be rare.
3. The Tribunal had found that the line manager was influential in initiating and guiding the disciplinary process. It did not, however, decide whether he manipulated evidence, created a fictitious reason, induced its adoption, or what effect any such conduct had on the dismissing manager’s decision. Its conclusion that disclosures were a material influence did not answer those questions. The omission was an error of law, but did not make a section 103A finding inevitable. The remitted Tribunal must determine those issues and, if tainted information is found, its effect on the principal reason for dismissal.
4. The pleaded dismissal detriment could not be expanded to mean conduct causing another manager to dismiss. The Tribunal had found that only the third respondent dismissed the claimant. A possible pre-dismissal detriment claim against the line manager had neither been pleaded nor permitted by amendment.
5. The attribution rule in Jhuti, which concerns the reason for dismissal under section 103A, does not apply to individual liability under section 47B(1A). A worker who carries out the alleged detriment must personally have the proscribed motivation. Combining that worker’s act with another worker’s motive is an impermissible composite approach and would create unjustified liability for an innocent individual. The employer’s derivative liability under section 47B(1B) accordingly could not arise.

Observation: In an appropriate case, Jhuti may apply to a direct employer claim for a non-dismissal detriment under section 47B(1).

• Employment Appeal Tribunal: The Tribunal’s dismissal of the section 103A claim was set aside and remitted. Its finding of liability under sections 47B(1A) and 47B(1B) was set aside, with substituted dismissal of those claims.
• Employment Tribunal: The Tribunal upheld ordinary unfair dismissal, dismissed the section 103A complaint, and, after reconsideration, upheld dismissal-detriment complaints under sections 47B(1A) and 47B(1B). Its judgment of 10 July 2023 was varied by this appeal.