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04 December 2017

Fairness of whistleblowing dismissal depends on what the decision-maker knew, not what they should have known

Under the Employment Rights Act 1996, if the main reason for an employee’s dismissal is the fact that they have made a protected disclosure, the dismissal will be automatically unfair. In Royal Mail Ltd v Jhuti, the Court of Appeal has reversed the decision of the Employment Appeal Tribunal (EAT) and ruled that an employee could not have been automatically unfairly dismissed for making a protected disclosure if the person making the decision to dismiss was unaware of the disclosure.

Ms Jhuti believed that another employee had breached the requirements of Royal Mail and its regulator, Ofcom, and reported this to her line manager, Mr Widmer. Mr Widmer reacted by questioning her understanding of those requirements, and asked her to send him an email retracting her allegations. Fearing that she might lose her job, Ms Jhuti did as he requested. Mr Widmer subsequently asked Ms Jhuti to attend weekly meetings to monitor her progress and set her what she regarded as unattainable targets. Ms Jhuti went on sick leave and raised a grievance complaining that she was being harassed and bullied as a result of her disclosures.

Royal Mail appointed another manager, Ms Vickers, to review Ms Jhuti’s position at the organisation, but not her grievance. Ms Vickers was told by Mr Widmer that Ms Jhuti had made an allegation of improper conduct but that this had been retracted. Believing his account, Ms Vickers dismissed Ms Jhuti for poor performance. Following an unsuccessful appeal, Ms Jhuti brought a claim for automatic unfair dismissal as a result of making protected disclosures.

Following the case of Reynolds v CLFIS (UK) Ltd, the Employment Tribunal held that Ms Jhuti had not been automatically unfairly dismissed because Ms Vickers did not know about her protected disclosures. However, the EAT disagreed, ruling that a decision to dismiss made on the basis of misleading information provided by the employee’s manager could be attributed to the employer.

The Court of Appeal has now allowed Royal Mail’s appeal, ruling that Ms Jhuti’s dismissal was fair. In the context of the unfair dismissal provisions in the Employment Rights Act 1996, which include whistleblowing dismissals, the focus of a Tribunal had to be on the state of mind of the person authorised to take the decision to dismiss on behalf of the employer. This had to be determined by what the decision-maker actually knew, not by knowledge attributed to them. In this case, any motivation on the part of Mr Widmer to dismiss Ms Jhuti because she had made a protected disclosure could not be attributed to Ms Vickers, who knew nothing of that disclosure. Ms Vickers had made her decision on the basis of what she reasonably understood to be inadequate performance.

Subject to any appeal, this is an important ruling which clarifies that Tribunals must assess the mental processes of the dismissing manager in order to determine the reason for unfair dismissal. Unfair conduct on the part of individual colleagues or managers is immaterial unless it can be attributed to the employer. This means that cases where information has been manipulated will be subject to particular scrutiny. The Court of Appeal stressed that employers may not always be able to avoid liability where information has been concealed or distorted, for example, if information is manipulated by a manager with some responsibility for the disciplinary investigation or by a very senior employee such as a CEO.

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