The Supreme Court has held that an employee was automatically unfairly dismissed for making protected disclosures even though the person who dismissed her was unaware of those disclosures in Royal Mail Group Limited v Ms K Jhuti.
The claimant raised concerns over regulatory breaches. When she sent emails detailing these concerns she was advised by her manager to send another email retracting her allegation. She did so and was then subjected to a performance management process which demanded the unattainable. She contacted HR to complain that she was being harassed and bullied as a result of her disclosures and then went off on sick leave and raised a grievance. She was offered a termination package which she rejected.
Another manager, who knew nothing of the background history to the situation, was appointed to review the claimant's case (not including her grievance). On becoming aware that the claimant was upset about something, the reviewing manager discussed the matter with the claimant's manager and was informed that she had made some allegations which she had subsequently retracted. The reviewing manager decided to terminate the claimant's employment. The claimant complained to an employment tribunal that she had been automatically unfairly dismissed as a result of making protected disclosures.
At first instance the tribunal rejected her claim, but the Employment Appeal Tribunal (EAT) disagreed holding that it didn't matter that the person making the decision to dismiss was unaware of the protected disclosure; the employer was still liable. While the Court of Appeal disagreed with the EAT holding that an employee was not automatically unfairly dismissed for making protected disclosures as the person who dismissed her was unaware of those disclosures, the Supreme Court restored the EAT's decision.
The Supreme Court has held that it is important to focus on the reason for the dismissal. Where the real reason for a dismissal (in this case the claimant's protected disclosures) is hidden from the decision-maker behind an invented reason, it is the duty of the court to penetrate through the invention. It followed that the claimant had been dismissed for making a protected disclosure.
Take note: The decision in Jhuti makes it clear that there is a distinction between discrimination and whistleblowing when it comes to decision makers and their motivation. In CLFIS (UK) Ltd v Reynolds (a discrimination case) the Court of Appeal held that the tribunal should focus on the thought processes and motivation of the decision-maker, and not those who provided the information to them. By contrast, where whistleblowing claims are concerned, a decision made on manipulated facts will be attributable to the employer and not to the decision-maker alone. It will not be possible for a person "in the hierarchy of responsibility above the employee" to determine that the employee will be dismissed for one reason, but to hide it behind an invented reason adopted by the person taking the decision to dismiss.
This will make it harder for employers to avoid a finding of automatic unfair dismissal, especially where (as in this case) the employee withholds crucial information. Before deciding to terminate an employee's employment it is best practice to liaise with the employer's Human Resources Department to ensure that the most complete information available is being used to inform any decision to dismiss.
