Whistleblowing dismissal and knowledge of the decision maker

The Supreme Court has handed down a decision in the case of Royal Mail Group Ltd v Jhuti [2019] UKSC 55, which has far reaching consequences for employers dealing with disciplinary (and grievance) processes. The appeal concerns the dismissal of Ms Jhuti from her employment with Royal Mail.  The Supreme Court considered the following question – can the reason for the dismissal be other than that given to the employee by the employer’s appointed decision maker?

The facts

Ms Jhuti, made protected disclosures under the whistleblowing legislation to her line manager. Ms Jhuti was pressurised to withdraw the allegations, which she did. Ms Jhuti’s line manager then became critical of her performance and put together a series of performance-related emails to suggest that she was a poor performer.

An independent, senior manager, was appointed to consider the performance concerns. Ms Jhuti in her defence referenced the protected disclosures. The senior manager queried this with Ms Jhuti’s line manager however, the line manager disingenuously suggested that the matter had been resolved.

Ms Jhuti was dismissed for poor performance.

The Employment Tribunal (ET)

The ET held that the reason or principle reason that Ms Jhuti had been dismissed was not due to any of her protected disclosures, because even though her line manager was motivated by the protected disclosures, the dismissing officer was not.

The Employment Appeal Tribunal (EAT)

The EAT resolved the matter in Ms Jhuti’s favour and held that it did not matter that the decision maker was not aware of the protected disclosure; the employer was still liable. The decision was appealed by Royal Mail.

The Court of Appeal (CoA)

The CoA overturned the EAT’s decision and held that the Court was obliged to consider only the mental processes of the employer’s authorised decision maker. Ms Jhuti appealed to the Supreme Court.

The Supreme Court

The Supreme Court essentially held that if an employee is dismissed following a protected disclosure, it will still be unfair even if the person making the decision is unaware about the whistleblowing.

Specifically, it held “where the real reason is hidden from the decision maker behind an invented reason, the Court must penetrate through the invention. 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”

Comment

This decision has significant consequences for employers when dealing with not only disciplinary processes but also grievance processes. Further, although this case applied to an individual who made a protected disclosure under the whistleblowing legislation; it could apply to someone who has raised allegations of discrimination and is then dismissed because of raising the allegations. It is important that employers have robust whistleblowing policies in place and ensure that training is available for managers tasked with undertaking disciplinary and grievance investigations and/or disciplinary and grievance hearings. If you have any questions or would like training on the disciplinary process, or a review of HR policies, please contact Sejal Raja at sejal.raja@rlb-law.com.


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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