Whistleblowing & Workplace Retaliation: What Henderson v GCRM Ltd & Ors Means for Employers

The 2025 case of Henderson v GCRM Ltd & Ors offers important legal clarification around whistleblowing and individual liability.

Expanding on principles set out in the 2018 case of Royal Mail v Jhuti, the Henderson case considers the application of Jhuti to a whistleblowing unfair dismissal claim and whether a manager can incur personal liability for detriment suffered following an act of whistleblowing, where the act of dismissal is combined with another individual’s motive.

Relevant Case Law: The Jhuti Principle

In Jhuti, Royal Mail dismissed Ms Jhuti, fabricating that the reason for her dismissal was due to her poor performance, while the real reason for her dismissal was a result of her making a protected whistleblowing disclosure. The dismissing officer had not been made aware of Ms Jhuti’s whistleblowing as the employer chose to conceal this fact.

The Supreme Court ruled that if an employer fabricates a false reason for dismissal in order to hide the real and unlawful motive from the decision maker, the true reason is what the law must consider, making Ms Jhuti’s dismissal automatically unfair.

Thus, the precedent set by Jhuti is that hidden reasons for dismissal can be attributed to the employer, even when the dismissing officer is unaware of this true motive.

Background to Henderson v GCRM Ltd & Ors

Ann Henderson was a senior embryologist working at GCRM Ltd, a fertility clinic, from 2018. Between the years of 2019 and 2021, she raised a series of concerns including in relation to clinical procedures, chronic understaffing, as well as unsafe equipment and working conditions. These were later recognised by the Employment Tribunal as legitimate whistleblowing disclosures.

In August 2021, a disciplinary investigation into Ms Henderson was launched on allegations of gross misconduct, including claims that Ms Henderson failed to maintain liquid nitrogen levels and misuse of lab equipment. Following a disciplinary hearing in February 2022, Ms Henderson was dismissed.

Ms Henderson’s line manager failed to make the dismissing officer aware of Ms Henderson’s whistleblowing and therefore the dismissing officer made her decision on the gross misconduct based on evidence presented by her line manager.

Employment Tribunal Findings

Ms Henderson brought two claims, she claimed that her dismissal was automatically unfair and that she had been subjected to a detriment, in both cases stating that the treatment of her was due to her making protected whistleblowing disclosures.

Automatic unfair dismissal claim dismissed

The Employment Tribunal dismissed the automatic unfair dismissal claim on the grounds that:

• The dismissing officer was not made aware of the whistleblowing disclosures.
• The whistleblowing disclosures were not the primary reasons for Ms Henderson’s dismissal.

Whistleblowing detriment and personal liability claims upheld

However, the Tribunal did find that the dismissing officer had subjected Ms Henderson to a detriment and held that she could be personally liable for the detriment caused by the dismissal.

Employment Appeal Tribunal

Both sides appealed to the Employment Appeal Tribunal (EAT). Ms Henderson argued that the Tribunal had failed to look beyond the stated reason for dismissal and did not apply the Jhuti principle.

GCRM Ltd argued that the dismissing officer should not have been held personally liable as she had no knowledge of the whistleblowing disclosures and therefore, she acted in good faith.

The EAT ultimately upheld both appeals.

Application of the Jhuti principle

It found that the Tribunal had wrongly assessed the automatic unfair dismissal claim and did not correctly apply the Jhuti principle. If the tribunal applied the principle correctly, they would’ve considered whether whistleblowing was the real hidden reason for dismissal, even if the dismissing officer was not made aware of it.

Personal liability for whistleblowing detriment

In addition to this, the EAT overturned the finding of personal liability against the dismissing officer. It held that when it comes to whistleblowing detriment claims against individuals, the dismissing officer’s own state of mind must be considered. Since the dismissing officer had no knowledge of the whistleblowing and genuinely believed she was dismissing Ms Henderson for misconduct, she could not be personally liable.

Key takeaways for employers

Henderson v GCRM reinforces the importance of clear decision making, fair process and a strong understanding of whistleblowing protections at all levels of a company. This case provides critical guidance for employers.

Employers should take extra care when a dismissal follows soon after a protected disclosure. The Jhuti principle will be followed in automatic unfair dismissal cases involving whistleblowing. During these cases the Tribunal has the power to consider whether the decisions stated are the real reason for dismissal or whether there is an improper motive hidden.

When it comes to personal liability for whistleblowing detriment, the decision maker’s own knowledge and motivation is key. As long as the dismissing officer acts in good faith and is not aware of the whistleblowing, they cannot be held personally responsible.

Other Essential Whistleblowing Case Law

• Sullivan v Isle of Wight Council: External job applicant not protected from detriment after whistleblowing
• Day v Lewisham & Greenwich NHS Trust: Whistleblowing protection continues after employment ends