Case update (2): Whistleblowing – are you in the know?

What do we already know?

We updated you in our July 2016 Newsletter Whistleblowing – are you in the know? on the EAT’s decision in Royal Mail Group Limited v Jhuti.

The EAT held that an employee could be automatically unfairly dismissed for whistleblowing even if the dismissal was actioned by a manager who was not aware of the employee’s protected disclosures.

What’s new?

The Court of Appeal has reversed the EAT’s decision.  Instead the Court of Appeal’s view is that unfair dismissal can only be established if it is the employer that has been unfair. If an individual manager or colleague is unfair, it does not satisfy the ‘unfairness’ requirement.

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

No, says the Court of Appeal in Royal Mail v Jhuti, available here.

Facts:  Ms Jhuti was employed by Royal Mail Group Limited. 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.  The EAT upheld Ms Jhuti’s appeal.  The EAT said even if a decision is made by one person in ignorance of the true facts, if they are manipulated by someone else who knows those facts and who is in a managerial position responsible for an employee, then that decision can be tainted and attributed with the unlawful motives. In other words, the ignorance of the individual decision maker about the employee’s protected disclosures will not be enough for the employer to avoid liability.

Royal Mail appealed to the Court of Appeal.  The Court upheld the appeal and overturned 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.

It is immaterial if the decision to dismiss has been manipulated by unfair or even unlawful conduct on the part of individual colleagues or managers, unless it can properly be attributed to the employer.

The judgment helpfully considers manipulation of the decision to dismiss by different persons:

• A colleague with no relevant managerial responsibility for the victim – this would not be an unfair dismissal as his/her knowledge and motivation would not be attributed to the employer;
• The victim’s line manager who does not have responsibility for the decision to dismiss – this would not be an unfair dismissal, as in the present case;
• A manager with some responsibility for the investigation – there would be a strong case for attributing the motivation and knowledge of the investigating manager to the employer; and
• Someone at or near the top of the management hierarchy, such as the CEO – there may well be an argument for distinguishing the case of a manager in such a senior position from those considered above. However, the Court of Appeal preferred not to express a definitive view on this point.

The Court of Appeal recognised that it may seem unfair that an employer should not be liable for unfair dismissal on these kinds of facts. However, it is an important principle that the statutory right not to be unfairly dismissed depends on there being unfairness on the part of the employer.  Therefore, the relevant unfair conduct has to be able to be attributed to the employer. The employer for these purposes is the person the employer has deputed to carry out the decision to dismiss. In this case that person’s decision was on the basis of poor performance and not because of the protected disclosures Ms Jhuti had made.

Implications:  This decision is helpful for employers and provides a potential way out of a finding of automatic unfair dismissal if the dismissing officer is unaware of any protected disclosures by the employee. However, caution should be exercised where the dismissal decision has been manipulated by the investigating officer or a very senior employee.  In this case Tribunals are more likely to attribute his/her motivation to the employer.

Employers should consider carefully whether it is appropriate to have a manager involved in disciplinary or performance proceedings where that manager has previously been the subject of, or involved in, whistleblowing allegations. The sensible course of action may be to appoint somebody to manage that disciplinary or performance process who has had no previous involvement in whistleblowing proceedings.