Case update (3): Whistleblowing – are you in the know?

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?

Yes, says the EAT in Royal Mail Group Limited 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 and said even if a decision is made by one person in ignorance of the true facts but who is manipulated by someone else in possession of the true 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.

In this case in particular, it was relevant that:

• Ms Jhuti made protected disclosures to her line manager which he realised were serious and significant;
• Ms Jhuti was deliberately subjected to detriments from the moment she made the disclosures;
• The temporary replacement for Ms Jhuti’s line manager carried on treating her in the same manner as her line manager had;
• The line manager successfully set up a “paper trail which set her to fail”; and
• The line manager deliberately misled and lied to the decision maker about Ms Jhuti’s disclosures.

Therefore the line manager’s reason and motivation had to be taken into account. Once they had been, it was inevitable that the employer would be found to have dismissed Ms Jhuti because she had made protected disclosures.

Implications:  This is a warning for employers not to try to hide protected disclosures when they have any relevance to the background of an employee relations process, such as disciplinary, capability or, even, an absence process.  This case is helpful to employees as it makes it easier for them to establish a link between a protected disclosure and a dismissal. Where protected disclosures form part of relevant background to a process, it is important to make reference to it in any recommendation to dismiss or take action to the potential detriment to the employee.  Any decision taken will then be openly in the knowledge of that disclosure but with clear reasons as to how it is distinguished from it.

What is still not clear from this decision, however, is whether it is necessary for the manipulation to be done by someone in a managerial position and responsible for an employee in order for the true facts be imputed to the decision-maker. For example, would the same view be taken if the manipulation is done by a colleague in circumstances where, say, both the victim and the manipulator are operating at a senior level, or by a manager who does not have responsibility for the employee?

If there’s another decision dealing with this point in due course we’ll be sure to update you so watch this space…