Employment Law Cases

Henderson v GCRM Ltd

The Jhuti approach of looking behind a decision maker’s reason for dismissal should not be applied to ‘detriment of dismissal’ claims.

In Royal Mail v Jhuti the Supreme Court made clear that if an employee (in the hierarchy of responsibility above the employee, such as their line manager) deliberately hides the real reason for dismissal behind an invented reason which the decision maker adopts, the reason for the dismissal is the hidden reason rather than the invented reason.

This case discussed the reach of what might be called the Jhuti principle, specifically whether it could be extended to detriment of dismissal claims.

Background

Ms Henderson worked for GCRM as an embryologist. She made various protected disclosures about staffing issues. She was dismissed for misconduct. The decision maker (her line manager’s superior) did not know about Ms Henderson’s protected disclosures but relied on input from her line manager who did.

As well as an ordinary unfair dismissal complaint, she also brought complaints under the whistleblowing provisions of the Employment Rights Act 1996 (ERA), specifically:

• against GCRM (the first respondent) for automatically unfair dismissal (under ERA, s 103A)
• against her line manager and the manager who dismissed her (the second and third respondents) - under ERA, s. 47B(1A), and
• against GCRM (under ERA, section 47B(1B)) on the basis that it was treated as having subjected her to the detriment of dismissal through the actions of the second and / or third respondents

A tribunal dismissed her complaint under s. 103A, but the complaints under s. 47B(1A) and (1B) were upheld against the third and first respondents. Both Ms Henderson and the first and third respondents appealed.

Ms Henderson argued that the tribunal had erred in its consideration of her s. 103A complaint by not properly considering the necessary questions arising from Jhuti - in particular as to whether or not the second respondent had manipulated the third respondent in the disciplinary process or created a false pretext for dismissal which the third respondent had been induced to adopt.

GCRM argued the tribunal had erred in concluding that Jhuti and other case law were capable of leading to a conclusion that an innocent dismissing manager (the third respondent) could be found personally liable to a claimant in a dismissal detriment complaint under s. 47B(1A) such as to make the employer also liable under s. 47B(1B).

EAT decision

Both appeals were allowed.

As regards Ms Henderson’s argument, once she had raised the issue of Jhuti, the EAT held that tribunal should have made clear findings about whether or not the second respondent had improperly manipulated the third respondent through his involvement in the disciplinary process or created a false pretext for dismissal which he induced the third respondent to adopt in order to hide a proscribed reason.

As the tribunal hadn’t engaged with those issues, Ms Henderson’s appeal was allowed and her s. 103A complaint was sent back to the same tribunal for it to consider those questions.

As regards GCRM’s argument, the EAT held that the tribunal had incorrectly applied Jhuti to the complaints made under s. 47B(1A) and (1B) and in finding the first and third respondents liable for those complaints.

Such an approach to liability was unacceptable in principle in a s. 47B(1A) complaint as 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.

The purposive approach to the legislation in Jhuti reflected the need to provide the claimant there with an effective remedy. There is no need to extend Jhuti into complaints under s. 47B(1A), and very good reason not to do so.

Since the third respondent wasn’t liable, GCRM could not be liable for the detriment of dismissal either under s. 47B(1B).

The complaints against the third and first respondents under s. 47B(1A) and (1B) were set aside.

Comment

The decision is good news for anyone appointed as an officer in disciplinary proceedings. It helps to preserve the position of an innocent decision maker not being left open to an unlimited personal liability because someone else has acted improperly.

It serves a good reminder for employers and disciplinary officers to document their decision-making process, making clear what independent decisions they made and on the basis of what evidence. This will help to provide additional evidence protect them in such a dismissal case.

This is particularly the case given that the scope of Jhuti is somewhat limited to the rare scenario where there is dishonest manipulation of the decision maker or a dishonestly constructed reason for dismissal used to conceal the real proscribed reason for dismissal.