A consultation has been opened on new guidance relating to the right of access (subject...
Whistleblowing and knowledge of the decision maker
Royal Mail Ltd v Jhuti
Where the real reason for dismissal of a worker is because they made a protected disclosure and that fact has been hidden from the decision-maker by a person in the ‘hierarchy of responsibility above the employee’, the dismissal is automatically unfair, even though the decision-maker has relied upon an invented reason for dismissal in good faith.
Ms Jhuti worked for Royal Mail as a probationary Media Specialist in its sales division. Shortly after starting work she believed that she had witnessed a colleague breaching OFCOM guidance and informed her team leader, Mr Widmer, of the suspected breach via email. Rather than ask her about her account of what happened, Mr Widmer (whose bonus was in part determined by the performance of his staff) questioned her about her understanding of the guidance and advised her to admit she had made a mistake and retract her email. Ms Jhuti was pressured into sending an email apologising for the allegation and retracting it. From that point, Mr Widmer required her to attend weekly progress meetings with him and she was generally subject to harsh and unreasonable criticism of her performance. She complained to HR of harassment and bullying because of her disclosures and eventually raised a formal grievance, before being signed off sick by her GP.
Another manager, Ms Vickers, who knew nothing of Ms Jhuti’s grievance, was appointed to review her employment. She did not see any of Ms Jhuti’s emails regarding the alleged breach of OFCOM guidance but was shown correspondence between Ms Jhuti and Royal Mail, which she characterised as ‘irrational’. Mr Widmer told Ms Vickers that Ms Jhuti had raised the issue of inappropriate use of the guidance with him but said Ms Jhuti accepted that she had misunderstood the situation. Mr Widmer showed her Ms Jhuti’s email retracting her allegation but none of her other correspondence. Accepting what Mr Widmer had told her, Ms Vickers dismissed Ms Jhuti on the grounds of poor performance. Ms Jhuti appealed but by that stage was too ill to participate.
Ms Jhuti brought two tribunal complaints; the first related to detriment for whistleblowing (which wasn’t the subject of this appeal). The second was that her dismissal was unfair under ERA 1996, s. 103A which provides that a dismissal is unfair ‘if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure’.
The tribunal dismissed this second complaint. It found that, as the decision maker had dismissed her on the ground of a genuine belief that her performance had been inadequate, the reason for dismissal was her performance and so s. 103A did not apply. The EAT reversed this decision, holding that the reason for dismissal was the making of the protected disclosures. The Court of Appeal allowed Royal Mail’s appeal against the EAT’s decision and reinstated the tribunal’s dismissal of the complaint of unfair dismissal. It held that a tribunal required to determine the reason for dismissal under s. 103A was obliged to consider only the mental processes of the employer’s authorised decision maker. Ms Jhuti appealed to the Supreme Court.
Supreme Court decision
The appeal was unanimously allowed.
The Supreme Court held that the case which the Court of Appeal had felt itself bound by (Orr v Milton Keynes Council) – in holding that when an employee’s line manager hides the real reason behind a fictitious reason, the latter is to be taken as the reason for dismissal if adopted in good faith by the decision maker – was not a satisfactory case on which to rely, not least because its facts were not comparable to the present case because there was no active deception, simply a failure to pass on certain details.
The Supreme Court held that, in searching for the reason for a dismissal which is attributed to an inanimate object such as a company, courts need generally look only at the reason given by the decision maker. This is because the employee has normally participated in the appeal and the employer has had the chance to look at all the evidence. But where the real reason is hidden from the decision maker behind an invented reason, the court must penetrate through the invention. Therefore, the answer to the appeal’s key question is, ‘Yes, if a person in the hierarchy of responsibility above the employee determines that she should be dismissed for one reason but hides it behind an invented reason which the decision maker adopts, the reason for the dismissal is the hidden reason rather than the invented reason’.
Link to judgment: https://www.bailii.org/uk/cases/UKSC/2019/55.html
Royal Mail argued that workers are able to join in fellow workers as parties to their claim and claim detriment and so they can join in those who have hidden the real reason from the decision maker, and the company is vicariously liable. This follows the case law in discrimination which has held that the mental processes of the decision maker determine the reason for dismissal. However, the Supreme Court disagreed. It made a number of points – first of all that the tribunal had attributed the decision to that of the employer and that s. 47B specifically does not give protection to workers where the detriment ‘amounts to a dismissal’.
It will be interesting to see how any discrimination case where the reason has been hidden from the decision maker will be dealt with by the Supreme Court as and when it gets that far.
As the Supreme Court pointed out at the beginning of its judgment, correctly identifying the reason for dismissal under s. 103A (which relates specifically to whistleblowing), is mirrored in s. 98, the more general provision for unfair dismissal. In other words, this decision is applicable to all unfair dismissals.