No whistleblowing dismissal if decision-maker unaware of protected disclosures
An employee’s dismissal was not on whistleblowing grounds as the person who took the decision to dismiss was unaware of her whistleblowing disclosures.
An employee’s dismissal was not on whistleblowing grounds as the person who took the decision to dismiss was unaware of her whistleblowing disclosures. When determining an employer’s reason for dismissal, an employment tribunal must only consider the mental processes of the decision-maker. A decision made by one person in ignorance of the true facts, which is manipulated by someone else in a managerial position responsible for the employee who knows the true facts, cannot be attributed to the employer.
Although the employee’s dismissal was fair, this did not necessarily mean that she could not recover losses caused by her dismissal. Where a dismissal is a consequence of prior unlawful detrimental treatment, it may be possible to recover losses arising from dismissal as part of a detrimental treatment claim.
In Jhuti v Royal Mail Group Limited, Ms Jhuti was employed as a media specialist. Soon after joining, she suspected a colleague had breached Ofcom rules. She emailed her manager, Mr Widmer, to inform him of these suspected breaches. He questioned her understanding of the rules and advised her to admit she was mistaken and to send an email retracting her allegation. She was upset but feared she might lose her job and so sent the email.
Mr Widmer then made life difficult for her, requiring her to attend weekly meetings to monitor her progress, setting an ever changing list of unattainable requirements and then putting her on a performance plan. She complained to HR that she was being harassed and bullied as a result of her disclosures. She went on sick leave.
Another HR Manager, Ms Vickers, was appointed to review Ms Jhuti’s position with Royal Mail. She knew nothing of the background but did speak to Mr Widmer who told her in the briefest of terms that Ms Jhuti had alleged improper conduct on the part of Royal Mail, but had subsequently retracted her allegations as she had misunderstood the situation. Ms Vickers accepted this and did not speak to Ms Jhuti as she was unwell and on sick leave. She terminated Ms Jhuti’s employment for poor performance.
Ms Jhuti claimed that she had been subjected to detriments for blowing the whistle and that her dismissal was automatically unfair on whistleblowing grounds.
The employment tribunal upheld her detrimental treatment claims but rejected her unfair dismissal claim. Ms Jhuti’s dismissal could only be automatically unfair on whistleblowing grounds if Ms Vickers' decision was motivated by the whistleblowing disclosure which was simply not the case.
The Employment Appeal Tribunal (EAT) disagreed. It considered that where a person makes a decision in ignorance of the true facts, but they are manipulated by someone else in a managerial position responsible for the employee who is in possession of the true facts, that decision can be attributed to the employer. Ms Jhuti had therefore been dismissed on whistleblowing grounds and her dismissal was automatically unfair.
Royal Mail appealed to the Court of Appeal.
The Court of Appeal overturned the EAT decision. When determining the employer’s reason for dismissal, an employment tribunal can only look at the mental processes of the person (or persons) who was authorised to and took the decision to dismiss. As Ms Vickers was not motivated by the whistleblowing disclosure, Ms Jhuti had not been dismissed on whistleblowing grounds and her dismissal was fair.
However, the Court of Appeal considered that this did not necessarily mean that Ms Jhuti could not recover losses caused by her dismissal. In its view, where a dismissal is a consequence of prior unlawful detrimental treatment, it may be possible to recover losses arising from dismissal as part of a detrimental treatment claim. Whilst the position was not straightforward, this is something which the employment tribunal would have to consider and rule on.
The Court of Appeal decision removes the uncertainty created by the Employment Appeal Tribunal in this case and makes it clear that when determining the employer’s reason for dismissal, it is only the thought processes of the decision-maker that are relevant. However, it did not rule out the possibility that manipulation of the decision-maker may still be taken into account in some cases, for example if there is manipulation by a manager who has some responsibility for the disciplinary investigation or if the manipulator holds a senior position, such as CEO.
The Court's view that employees may able to recover dismissal losses as part of a claim for detrimental treatment if prior unlawful detrimental treatment leads to dismissal is also of interest. No doubt this is an argument that claimants will be making in future and we can expect to see further cases considering this issue.
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