The recent Employment Appeal Tribunal (EAT) decision in Henderson v GCRM Ltd & Ors shows how complex whistleblowing cases can become when investigations lack independence. It’s a timely reminder for employers and HR professionals that fairness, transparency and clear boundaries in disciplinary processes are essential to protect both people and organisations.

 

Background

Ms Ann Henderson worked as an embryologist for GCRM Ltd, part of a private medical group. Over two years, she raised several concerns about staffing levels and patient safety. These were accepted as protected disclosures under the Employment Rights Act 1996 (ERA).

Later, concerns about her conduct led to a disciplinary process. A senior manager chaired the disciplinary hearing. She had only recently joined the business and had no prior involvement with Ms Henderson’s disclosures. Following that hearing, Ms Henderson was dismissed for misconduct in February 2022.

She claimed that her dismissal was linked to her whistleblowing and brought complaints for automatically unfair dismissal under section 103A of the ERA and for detriment under section 47B.

 

What the Tribunal Found

The Employment Tribunal accepted that Ms Henderson had made protected disclosures. It also found that these disclosures had some influence on the decision to dismiss her. However, it found that her disclosures were not the main reason for her dismissal.

The tribunal rejected her claim for automatically unfair dismissal but upheld her detriment complaints under sections 47B(1A) and (1B) of the Employment Rights Act 1996. These provisions protect workers from being treated unfairly because they have made a protected disclosure, including when that treatment comes from another employee or agent of the employer. In practice, this means both the individual who caused the detriment and the employer can be held responsible for what happened.

In reaching its decision, the tribunal relied on two important legal precedents:

• Royal Mail v Jhuti (2018), which found that if a manager manipulates evidence to conceal the real reason for dismissal, the tribunal can look behind the official reason and identify the true motive.
• Timis v Osipov (2019), which confirmed that individuals as well as employers can be liable for whistleblowing detriment.

Using both principles, the tribunal found that even if the dismissing manager had acted in good faith. Even so, her decision could have been influenced by others who were motivated by the disclosures.

 

What Happened on Appeal

Both sides appealed. Ms Henderson argued that the tribunal had not properly considered whether her line manager had manipulated the disciplinary process. The employer and the managers argued that it was wrong to make an “innocent” manager personally liable for detriment.

The EAT agreed in part with both.

For Ms Henderson’s appeal:
The EAT said that once Jhuti had been raised, the tribunal needed to make clear findings about whether the line manager had manipulated evidence or created a false reason for dismissal. Because this had not been done, the case on automatically unfair dismissal was sent back to the tribunal for reconsideration.

The EAT made it clear that tribunals must look closely at the behaviour of anyone involved in shaping an investigation, not just the final decision-maker. If a manager with knowledge of the protected disclosures influenced the process in a way that contributed to the dismissal, the tribunal must examine that influence carefully.

For the employer’s appeal:
The EAT decided that the tribunal had made a legal error by applying Jhuti to section 47B. It ruled that an “innocent” manager who was not motivated by retaliation could not be personally liable for detriment. The EAT replaced the earlier decision and dismissed those claims.

The EAT stressed that Parliament did not intend to expose managers to personal liability where they had acted in good faith. Remedies already exist against employers and against individuals who act actively manipulate or distort a process. Imposing liability on an unknowing decision-maker would be unfair and legally unsound.

 

What This Means for Employers and HR

This decision highlights a key principle in whistleblowing law. Even if a manager acts in good faith, the employer may still face risk if another person in the organisation has influenced the process for the wrong reasons.

The judgment reinforces the need for independent and unbiased handling of investigations and disciplinary decisions. It also highlights the importance of:

• maintaining clear records of who contributed information;
• how decisions were reached; and
• whether anyone involved held a conflicting interest.

For many organisations, this case exposes a practical risk. Informal conversations, off-the-record comments or historic tensions can easily bleed into formal processes. If the person steering an investigation has a history with the employee or has been directly criticised in a protected disclosure, their involvement can undermine the entire process.

 

Practical Lessons for Employers and HR Professionals

1. Protect the independence of investigations
   Avoid allowing anyone with a vested interest or prior involvement in the issue to take part in disciplinary or appeal stages. Independence helps protect against bias and strengthens the integrity of the process.
2. Record decision-making clearly
   Keep accurate notes showing how conclusions were reached and who provided information at each stage. This transparency helps demonstrate fairness if decisions are later questioned.
3. Train managers on whistleblowing responsibilities
   Managers need to understand how to recognise a protected disclosure and how to separate it from performance or conduct concerns. Many disputes arise from misunderstanding rather than intent.
4. Keep policies and procedures aligned
   Review whistleblowing, grievance and disciplinary policies to make sure they are consistent. Reporting routes should be clear and give employees confidence that concerns will be handled properly.
5. Seek independent HR advice when needed
   For smaller organisations or complex cases, external HR support can help ensure investigations are objective and legally sound.
6. Consider process mapping for sensitive cases
   For cases involving previous complaints or strained relationships, mapping out who will handle each stage can prevent influence or bias creeping into the process. This approach gives employers a clearer structure and shows that independence was prioritised.

 

What to Keep in Mind

The Henderson case shows how easily disciplinary processes can become complicated when whistleblowing issues are involved. It also confirms that while individual managers may not always face personal liability, employers still carry the main responsibility for ensuring fair and transparent treatment.

For both employers and HR professionals, this case is a valuable reminder of the importance of impartiality, proper documentation and a culture that supports people who speak up.