H was an embryologist who the employment tribunal accepted raised certain concerns about staffing matters that amounted to protected disclosures. She was subsequently dismissed on stated grounds of conduct. 

She raised employment tribunal 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 detriment claimed was dismissal.

The ET in Glasgow held H’s dismissal by GRCM was ordinarily unfair. It dismissed the automatic unfair dismissal case against GRCM, and held that the R3 was not herself motivated by H’s disclosures when making the decision to dismiss her. However, the ET considered that R3 was liable under s.47B because her decision had been materially influenced by R2. R2 was not found personally liable because he had not made the decision to dismiss. GCRM was then vicariously liable with R3 for the claim against her by virtue of s.47B(1B).

Both parties appealed against the conclusions of the claims under ss.47B and 103A. Westwater Advocates’ David Hay KC was instructed by two respondents GRCM and R3, leading Chris Milsom, barrister at Cloisters Chambers in London. The claimant was represented by William Young leading Stephen Butler, both barristers at Outer Temple chambers in London.

After one-and-a-half days of hearing, the EAT allowed the respondents’ appeal against the findings on the s.47B claims. It was an error of law for the ET to impute the motive of R2 to the innocently-motivated R3 to uphold the claim against her. There was on the facts no s.47B claim properly made out against R3, and it was accordingly dismissed. There being no primary liability against R3, GRCM could not be vicariously liable. The s.47B claim against GRCM was also dismissed.

H’s appeal was also allowed on the basis the ET had inadequately explained why, notwithstanding its conclusions about R2’s influence, the reason for dismissal was not principally or mainly because of H’s disclosures and has been remitted to the same ET.

This decision comes as a timely precursor to the Court of Appeal’s consideration of the cases of Wicked Vision v Rice & Treadwell v Barton Turns Development, which is being heard today.