Whistleblowing: EAT clarifies scope of detriment liability under s.47B ERA 1996
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In Ms Ann Henderson v GCRM Ltd and others [2025] EAT 136. Lord Fairley (President of the EAT) has provided important guidance on the liability principles governing whistleblowing detriment claims.
H was an embryologist found by the ET to have made protected disclosures. She was subsequently dismissed on stated grounds of conduct. She raised claims for ‘ordinary’ unfair dismissal and automatically unfair dismissal on the ground the principal or main reason for her dismissal was her protected disclosures (s.103A Employment Rights Act 1996) against her former employer, GRCM Ltd. She also raised claims against her line manager (R2) and the dismissing manager (R3) individually, arguing that they had each submitted H to a ‘detriment’ on the grounds of her protected disclosures (s.47B(1A) ERA 1996). The only detriment claimed was dismissal. The ET dismissed claims under s103A ERA 1996 but upheld the dismissal claim under s47B(1A) against both employer and innocent decision-maker.
The EAT overturned the latter decision, confirming that the Jhuti principles have no role to play in s47B(1A) claims since the effect of this would be to render an innocent decision maker primarily liable. The Reynolds line of authority has been held to apply to detriment claims under s47B(1A). There being no primary liability against R3, GRCM could not be vicariously liable. The s.47B claim against GRCM was also dismissed. The s103A claim has been remitted to the same ET for review.
Chris Milsom appeared for the successful respondents led by David Hay KC of Westwater Advocates. The case has been reported in the BBC, The Times, the Telegraph and the Herald:
IVF clinic whistleblower wrongfully sacked for complaining patients were being misled, court finds
GCRM embryologist 'career wrecked' after tribunal fight win | The Herald
The judgment can be found here.
