Employment & Pensions Blog: Personal Liability for Whistleblowing Detriment by Dismissal - Henderson v GCRM

In Royal Mail Limited v Jhuti (2018), the Supreme Court established that where senior management decides a person should be dismissed for a reason, but hides it behind an invented reason which a dismissing officer later adopts, legally the reason for dismissal is the hidden reason rather than the invented one. In Ms Jhuti’s case, the real reason Royal Mail wanted to dismiss her was because she had blown the whistle, and it invented a poor performance case as a way to dismiss her and had hidden the whistleblowing from the dismissing officer.

Fast forward to 2025. In the recent case of Ann Henderson v GCRM Limited, the Employment Appeal Tribunal (EAT) looked at this duty more closely to determine how far the Tribunal should go to determine the true reason for dismissal and who in the chain of management can be found personally liable.

Background

GCRM Limited is a clinic that provides fertility services. Ms Henderson’s employment transferred to GCRM in October 2018 and she worked as an embryologist. Between 2019 and 2021 Ms Henderson made several disclosures to her managers about clinical procedures and staffing issues, which the Tribunal later found were protected disclosures (whistleblowing). In August 2021 a disciplinary investigation was instigated for possible gross misconduct arising out of Ms Henderson’s failure to maintain liquid nitrogen levels in a tank and for using the wrong fertilisation medium. After an investigation and a disciplinary hearing, Ms Henderson’s was dismissed on 3 February 2022.

The chair of the disciplinary hearing (ET) who ultimately made the decision to terminate Ms Henderson’s employment was unaware of the history of Ms Henderson’s whistleblowing disclosures. In making her decision to dismiss, ET relied on the information given by Ms Henderson’s line manager (MT).

The Employment Tribunal

Ms Henderson brought an automatic unfair dismissal claim against GCRM, and a detriment claim against ET personally alleging that ET had subjected her to a detriment by dismissing her for blowing the whistle.

The Employment Tribunal dismissed the automatic unfair dismissal claim and found that, as ET was unaware of the history of Ms Henderson’s whistleblowing disclosures, they were not the primary reason for her dismissal.

MT, as her line manager, was aware of Ms Henderson’s whistleblowing disclosures, and he had heavily influenced ET’s decision to dismiss. Whilst the whistleblowing disclosures were not the primary reason for dismissal (because ET didn’t know the history of them), the disclosures were a material reason because of MT’s influence on the decision. Therefore, the Tribunal found that ET was personally liable for having subjected Ms Henderson to the detriment of dismissal.

Both parties appealed to the EAT.

The EAT

Ms Henderson appealed on the grounds that the Employment Tribunal had not properly considered the Jhuti principle – to look behind the invented reason and focus on the hidden reason for dismissal. In this instance, she argued the hidden reason for dismissal was her whistleblowing, and the invented reason was her alleged gross misconduct.

GCRM appealed on the basis that ET shouldn’t have been held personally liable. The basis for the appeal being - If ET’s reason for terminating Ms Henderson’s employment principally wasn’t whistleblowing (as the Tribunal had found), how could she be personally liable for dismissing Ms Henderson for whistleblowing?

The EAT ultimately agreed with both parties, and upheld both appeals. The EAT found that the Tribunal had failed to apply to the Jhuti principle to the automatic unfair dismissal claim, and it should have considered whether whistleblowing was the hidden reason.

Regarding ET – The EAT agreed that she should not be held personally liable: “it cannot have been the intention of Parliament to impose unlimited liability upon innocent individuals who have not personally been motivated by” whistleblowing. In this case, ET’s decision to dismiss was not motivated by Ms Henderson’s whistleblowing, and accordingly she could not be personally liable.

Comment

This case addresses a question that has needed answering since the Jhuti decision in 2018: if a dismissing officer is misled or kept in the dark about key facts, can they be held personally liable for a dismissal based on a hidden agenda they didn’t know about? The EAT draws an important distinction. In an unfair dismissal claim, the legal reason for dismissal can be the hidden, improper motive - even if the dismissing officer was unaware of it. But in a claim alleging whistleblowing detriment by dismissal, personal liability depends solely on the dismissing officer’s own state of mind. If they acted in good faith, without knowledge of the true motive, they cannot be personally liable.

If you require any further guidance on whistleblowing or unfair dismissal, please contact a member of our Employment Team.