EAT limits personal liability for whistleblowing detriments
The Employment Appeal Tribunal has confirmed that managers who play no part in wrongdoing cannot be personally liable for whistleblowing detriments, even where others in the organisation have acted improperly.
Background
In the case of Henderson v GCRM Ltd, Ms Henderson worked as an embryologist and had raised several concerns over a two-year period about staffing levels and procedures in her department. These were accepted as protected disclosures. Her line manager, who was responsible for addressing the issues she had raised, became increasingly frustrated by her ongoing complaints and sought to resolve matters informally by proposing that she leave her role under a settlement agreement. When this was refused, he initiated a disciplinary process instead.
An HR manager conducted an investigation at the line manager's instruction, focusing on alleged misconduct by Ms Henderson. The investigation led to a disciplinary hearing chaired by a different manager who had recently joined the organisation and was not aware of the background or the protected disclosures. Relying heavily on the material prepared by the earlier manager and HR, she decided to dismiss Ms Henderson for misconduct.
Ms Henderson claimed that her dismissal had been influenced by her earlier whistleblowing. She alleged that the disciplinary process had been manipulated by her line manager, who wanted her removed because of the concerns she had raised. The Employment Tribunal agreed that her disclosures had played a “material” part in her dismissal and held both the employer and the dismissing manager liable for whistleblowing detriment, despite the fact that the dismissing manager had acted in good faith.
The appeal decision
On appeal, the EAT overturned that finding. It held that a manager who genuinely and independently decides to dismiss an employee cannot be personally liable for a whistleblowing detriment simply because another individual in the organisation was motivated by the employee’s disclosures. The EAT explained that it would be unfair to combine one person’s actions with another’s motives, as this would expose innocent decision-makers to personal claims.
However, the EAT sent part of the case back to the Employment Tribunal to examine whether the earlier manager had deliberately manipulated the process or concealed the real reason for dismissal. The appeal judgment makes clear that where an individual in the chain of command has distorted the facts or engineered a dismissal for whistleblowing reasons, the tribunal can still look behind the stated reason to uncover what really happened.
Learning points for employers
This decision provides reassurance that managers who act in good faith will not be personally liable where they have genuinely made their own decision. However, employers can still be held responsible if others within the organisation have acted improperly or sought to disguise the real reason for dismissal.
Employers should ensure that disciplinary and whistleblowing processes are independent, transparent and well-documented. Investigations should be handled by individuals who have not previously been involved in the issues raised, and decision-makers should receive balanced information that has not been filtered or influenced by others. It is also important to maintain a clear audit trail showing how conclusions were reached. Training should reinforce that any form of retaliation, whether direct or indirect, against an employee who raises concerns will not be tolerated.