In A Whistleblowing Claim, Does the Manager Who Made the Decision to Dismiss Need to Know About the Relevant Protected Disclosure?

The case of Royal Mail v Jhuti looked at whether an employee was automatically unfairly dismissed due to whistleblowing, when the manager who made the decision to dismiss was not actually aware that the employee had blown the whistle.

The Court of Appeal decided that the question was what the manager actually knew, not what knowledge ought to be attributed to them.

Background

Early on in her employment, Ms Jhuti ‘blew the whistle’ about what she believed were inappropriate incentives being offered to customers by other members of staff. It was accepted at the later Employment Tribunal hearing that, in raising these matters, Ms Jhuti had made a “protected disclosure” under the whistleblowing legislation.

Ms Jhuti reported her concerns to her line manager, in writing. Her line manager did not action her concerns. Instead, he was critical of her and soon put her under a performance development plan. There was evidence that he placed Ms Jhuti under pressure to withdraw the concerns she had raised.

Another manager, Mrs B, who had not previously been involved with Ms Jhuti, was later appointed to review Ms Jhuti’s continued employment. However, certain information which was relevant to Ms Jhuti’s case was withheld from Mrs B, including information about the protected disclosures Ms Jhuti had made. Ms Jhuti herself was too sick to meet with Mrs B. Mrs B decided to dismiss Ms Jhuti on the grounds of poor performance.

As Ms Jhuti did not have two years’ service, she could not bring an “ordinary” unfair dismissal claim. However, she claimed her dismissal was “automatically” unfair, because she had blown the whistle (that being a claim for which 2 years’ service is not needed).

The Employment Tribunal decided the dismissal was unfair. It found that Mrs B genuinely and reasonably believed Ms Jhuti should be dismissed for poor performance, but Mrs B did so on the basis of incomplete and misleading information, most of which came directly or indirectly from Ms Jhuti’s line manager, who was motivated by the protected disclosures she had made.

The employer appealed to the Employment Appeal Tribunal (EAT). The EAT was satisfied that Mrs B’s decision, made in ignorance of the true facts, had been “manipulated” by Ms Jhuti’s line manager. The EAT decided that both the reason and motivation of Mrs B and the line manager had to be taken into account in deciding the reason for dismissal. The EAT found the dismissal was because of the whistleblowing, even though the dismissing officer did not know about it.

The case went to the Court of Appeal, which overturned the EAT. The Court found that the dismissal was fair. What the employer reasonably believed when dismissing an employee had to be determined by reference to what the decision maker actually knew, not what knowledge ought to be attributed to them.

What does this case mean for employers?

Whilst the Court of Appeal’s decision sounds like common sense, there are some points which employers should bear in mind.

The Court identified two possible, alternative scenarios, which might mean that a dismissal is found to be unfair.

The first scenario (albeit an extreme example) is where a person at the very top of the employer’s organisation, for example the Managing Director, distorts or manipulates the evidence that is in front of the decision maker.

The second scenario is where a manager who has some responsibility for a disciplinary investigation (which was not what happened in Ms Jhuti’s case), distorts or manipulates the investigation, before presenting his or her findings to the manager who hears the disciplinary. If that happened, there may well be grounds for the employee to argue that a dismissal was unfair.

Employers should therefore keep this in mind when dealing with all dismissals and, to be on the safe side, should make sure that no relevant evidence or facts are kept away from the manager who hears the disciplinary.

JR BW July 2017

Jonathan Royle

Senior Associate