Case update (2):  Human Rights and Covert Monitoring

What do we already know?

We updated you in our November 2017 Newsletter Whistleblowing – are you in the know? on the Court of Appeal’s decision in Royal Mail v Jhuti.

The Court of Appeal held that automatic unfair dismissal for whistleblowing can only be established if it is the dismissing manager that has been unfair. If another individual manager or colleague is unfair, it does not satisfy the ‘unfairness‘ requirement.

What’s new?

The Supreme Court has overturned the Court of Appeal’s decision.  The Supreme Court held that where the reason for a dismissal given in good faith by the dismissing manager turns out to be a fictitious reason (due to another manager manipulating the facts), it is the hidden reason (rather than the fictitious reason) that is the true reason for a dismissal.

For further detail of the case please read on…

Summary:  Can an employee be automatically unfairly dismissed for whistleblowing even if the dismissing manager was not aware of the employee’s protected disclosures?

Yes, says the Supreme Court in Royal Mail v Jhuti, available here.

Facts:  Ms Jhuti was employed by Royal Mail Group Ltd. She attended a customer meeting with her colleague and during this meeting she became concerned that her manager was not following Royal Mail protocol and was failing to meet Ofcom standards. She emailed her manager about this. Her manager questioned her knowledge of the protocol and urged her to retract the allegation; Ms Jhuti feared for her job and so retracted it. Following this, Ms Jhuti’s manager robustly performance managed her and treated her differently from her colleagues.

Ms Jhuti raised a grievance and went off sick. Another manager was appointed to review her case and this manager was informed that Ms Jhuti had raised concerns but that she had then accepted she was mistaken and had apologised. Only Ms Jhuti’s email retracting her allegations was sent, and no further information was given about the disclosures.

Ms Jhuti was dismissed by the new manager for poor performance and she brought a Tribunal claim for automatic unfair dismissal under the whistleblowing legislation on the grounds of her protected disclosure. The Tribunal rejected Ms Jhuti’s claim because, as a result of being deliberately misled, the new manager was unaware of the protected disclosure and so could not have dismissed because of it. The manager believed she was dismissing for poor performance.

Ms Jhuti appealed against the Tribunal’s decision.

EAT decision

The EAT upheld Ms Jhuti’s appeal and said even if a decision is made by one person in ignorance of the true facts, that decision can be tainted and attributed with the unlawful motives of another person.

Royal Mail appealed to the Court of Appeal.

Court of Appeal decision

The Court upheld the appeal and reversed the EAT’s decision.

The Court of Appeal held that Ms Jhuti was not automatically unfairly dismissed. The Court reasoned that in an unfair dismissal claim (including a whistleblowing claim for automatic unfair dismissal), the Tribunal is only obliged to consider the mental processes of the person who was authorised to, and took the decision to, dismiss. Only this person counts as the employer for these purposes.

Ms Jhuti appealed to the Supreme Court.

Supreme Court decision

The Supreme Court has reversed the decision of the Court of Appeal.

The Court held that in searching for the reason for a dismissal, normally one looks only at the reason given by the decision-maker. However, in instances where the decision maker is blind to the real reason (because it is hidden behind a fictitious reason), it is the “Court’s duty to penetrate through the invention rather than to allow it also to infect its own determination“.

Implications:  This is an important decision for employers and expands the protection for whistleblowers. It is now clear that a decision made on manipulated facts will be attributable to the employer and not to the decision-maker alone.

Employers should note that a fair and reasonable procedure is no longer enough for a ‘safe’ dismissal. There is now even more of an incentive for employers to investigate the real causes of grievances in the workplace, to ensure that there is no ‘hidden reason’ behind the capability/conduct process before the decision to dismiss is made.

It is vital that the most complete information available is being used to inform the dismissing officer of the decision to dismiss.  A clear whistleblowing policy will assist with this, as it should encourage employees to raise concerns in a way that is traceable and where outcomes can be clearly recorded.

Equally, dismissing managers should ensure they are up to speed on all of the relevant background when dismissing an employee, and should not be afraid to question any (or all) of the information being given to them on which to base the decision.

However, of some comfort to employers, is the reminder by the Supreme Court that a case similar to this on its facts will be rare. In most cases the dismissing manager will be able to rely on the investigation without a ‘rogue’ manager attempting to conceal disclosures.

If you ever have concerns about the validity of an investigation and want a second opinion or help with running it, then please do contact us.