Written by Brabners LLP
A recent case has confirmed that the fairness of a dismissal should be judged by what the decision-maker knew at the time of the decision and not what they should have known. In the whistleblowing case, Royal Mail Ltd, v Jhuti, the Court of Appeal decided that an employee could not have been automatically unfairly dismissed for making a protected disclosure (i.e. whistle-blowing) if the person who made the decision to dismiss was not aware of or motivated by the whistleblowing.
As you may know, employees must not be subjected to any detriment by their employer for making a protected disclosure (i.e. whistle-blowing) under employment law. Additionally, if the main reason for dismissing an employee is the fact that they have made a protected disclosure, this dismissal will be deemed to be automatically unfair under employment law. In the Jhuti case, the Court of Appeal had to decide whether an employee had been automatically unfairly dismissed by a manager who was not aware of protected disclosures that the employee had made to a different manager. Ms. Jhuti was a media specialist at Royal Mail. During her employment, she came to believe that her colleagues were breaching Royal Mail and regulatory rules. She reported this to her line manager by email who put pressure on Ms. Jhuti to withdraw her allegations or face termination of her employment. Fearful she may lose her job, and under pressure from her line manager, Ms. Jhuti sent a further email retracting her statement. It was alleged that the line manager continued to subject Ms. Jhuti to detrimental treatment in the form of bullying and harassment. Ms. Jhuti raised a grievance and went on sick leave. Royal Mail then appointed another manager, Ms. Vickers (who knew nothing of the history of the matter), to review Ms. Jhuti’s position at the organisation but not the grievance made. Ms. Vickers was not aware of the disclosures made to the line manager and was only informed in passing by the line manager that Ms. Jhuti had made a report of improper conduct, but that she had later retracted this. Ms Vickers believed this account. Without meeting with Ms Jhuti who was unwell, Ms Vickers then made a decision to dismiss her on the grounds of poor performance having reviewed her position in the business.
The Employment Tribunal heard the matter first and concluded that a valid protected disclosure had been made to the line manager by Ms Jhuti. They held that Ms Jhuti had been subjected to detrimental treatment because of this in the form of the bullying and harassment from her line manager. They did not, however, conclude that she had been automatically unfairly dismissed because the decision maker’s motivation to dismiss had not been the protected whistleblowing disclosures – she didn’t know about them. The case went to the Employment Appeal Tribunal who reversed the decision, confirming that both the reason and the motivation of the decision maker and the line manager could be attributed to the employer and therefore should be taken into account. Royal Mail appealed to the Court of Appeal. They argued that when determining the reason for a dismissal, only the mental processes of those authorised to make a decision should be considered. The Court of Appeal agreed. They confirmed that the legal right not to be unfairly dismissed depends on there being unfairness on the part of the employer and that unfair conduct on the part of individual managers is immaterial unless such conduct can be properly attributed to the employer. In this case, it follows that any motivation on the part of the line manager to dismiss Ms. Jhuti because of the protected disclosure could not be attributed to the employer because the decision maker knew nothing of it.
The decision should be seen as welcome news for employers as it confirms a narrow approach should be adopted when determining potential liability in unfair dismissal claims. It supports that an employer should not be held liable for the unfair motivation of employees who are not involved in the dismissal decision making and that only the motivation of the decision maker themselves should be scrutinised.
Disclaimer: This bulletin is for general guidance purposes only and should not be used for any other purpose. This article is written by Brabners and reproduced with their permission. Brabners is a Limited Liability Partnership.