Commentary

C. Establishing the reason in an organisation

Division CIII Whistleblowing
| Commentary

C. Establishing the reason in an organisation

| Commentary

C.     Establishing the reason in an organisation

The reference above to the reason or principal reason for dismissal means the employer's reason. Normally, this does not cause problems, even in the case of a corporate employer, because the tribunal will simply look at the reason relied on by the dismissing manager, who for these purposes is taken to represent the employer. If he or she acted on the basis of the protected disclosure, the corporate employer will be liable. However, a possible complication may arise here (generally, but perhaps of particular concern in a whistleblowing case), if that dismissing manager has been manipulated and misled by a fellow manager who is the one who really objected to the disclosure and has engineered a false (non-disclosure) case against the employee in order to have him or her dismissed (referred to by Underhill LJ as an 'Iago case'). For several years this caused controversy up to Court of Appeal level because, applying that normal rule here, the misled dismissing manager did not act because of the disclosure and so prima facie the ERA 1996 s 103A claim against 'the employer' should fail. Although this was subject to two exceptions (where the Iago was either involved in the investigation itself or was so high in the organisation that he or she was bound to have had an effect), in a straightforward case of the dismissing manager being fed false information by a third party manager objecting to the

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