The first Respondent was the company the Claimant worked for, the second was her manager and the third was the dismissing officer. The Claimant was employed by the first Respondent as an embryologist. She was dismissed for the stated reason of conduct. She brought complaints inter alia against the first Respondent under section 103A of the ERA for automatically unfair dismissal and against the first and third Respondents for the detriment of dismissal under sections 47B(1A) and (1B). The complaint under section 103A did not succeed, but the complaints under sections 47B(1A) and (1B) were upheld against the third and first Respondents. The Claimant and the first and third Respondents each appealed. In her appeal, the Claimant contended that the ET had erred in its consideration of her section 103A complaint by not properly considering the necessary questions arising from Royal Mail Limited v Jhuti [2018] ICR 982 – in particular as to whether or not the second Respondent had manipulated the third Respondent in the disciplinary process or created a false pretext for dismissal which the third Respondent had been induced to adopt. In the Respondents’ appeal it was submitted that the ET had erred in concluding that that, in combination, Timis v Osipov [2019] ICR 655 and Jhuti were capable of leading to a conclusion that an innocent dismissing manager (the third Respondent) could be found personally liable to a Claimant in a dismissal detriment complaint under section 47B(1A) such as to make the employer also liable under section 47B(1B).

Both appeals were allowed. In the Claimant’s appeal, once Jhuti had been raised by the claimant as a live issue, it was necessary for the ET to make clear findings about whether or not the second Respondent had improperly manipulated the third Respondent through his involvement in the disciplinary process or created a false pretext for dismissal which he induced the third Respondent to adopt in order to hide a proscribed reason. The ET had erred in failing to engage with those issues. The Claimant’s appeal was therefore allowed and the section 103A complaint was remitted to the same ET for it to consider those questions. In the Respondents’ appeal, the ET had erred in applying Jhuti to the complaints made under sub-sections 47B(1A) and (1B) and in finding the first and third Respondents liable for those complaints. Such an approach to liability was unacceptable in principle in a section 47B(1A) complaint as it cannot have been the intention of Parliament to impose unlimited liability upon innocent individuals who have not personally been motivated by a proscribed reason. The purposive approach to the legislation in both Timis and Jhuti reflected, in each case, the need to provide the Claimant with an effective remedy. There is no need to extend the ratio of Jhuti into complaints under section 47B(1A), and very good reason not to do so.