Overview: Overturning the decision of the Court of Appeal, the Supreme Court has confirmed that an employer can be held liable for automatic unfair dismissal in circumstances where the person taking the decision to dismiss is unaware that protected disclosures have previously been made.
The facts: This case concerned the Royal Mail and one of its employees Ms Jhuti. Following a meeting, Ms Jhuti sent an email to her manager expressing concerns that a colleague may have broken the Royal Mail’s rules and also the requirements of its regulator, Ofcom.
At a subsequent meeting, Ms Jhuti’s manager pressurised Ms Jhuti into retracting her concerns. The same manager then embarked upon a unwarranted and heavy-handed performance management process which eventually led to another manager (who had, by that time, become responsible for line managing Ms Jhuti) to terminate Ms Jhuti’s employment on capability grounds.
Importantly the dismissing manager did not have any knowledge of the protected disclosures that Ms Jhuti had previously made; consequently, the fact that protected disclosures had been made was not in her mind when the decision to terminate Ms Jhuti’s employment on performance related grounds was taken.
Outcome: Siding with Ms Jhuti, the Supreme Court held that if a person in the “hierarchy of responsibility” above an employee determines that they should be dismissed for a reason (in the present case that reason being the fact that they had made protected disclosures) but hides it behind an invented reason which a later decision-maker unwittingly adopts, then the reason for the dismissal will be the hidden reason as opposed to the invented reason. It should be noted that this reasoning will apply not only to whistleblowing claims but to claims for ordinary unfair dismissal as well.
Our comments: Clearly this is an important decision. However, it’s important for HR practitioners and employers to appreciate that cases involving a high degree of manipulation by a senior manager will be relatively uncommon and that the Court of Appeal’s decision in the case of Orr v Milton Keynes Council remains good law. That is to say that absent evidence that there has been a high degree of manipulation at a senior level then, in circumstances where a fair and thorough investigation has been carried out, it is only the facts known to the decision-maker that are relevant to the question of determining whether or not the dismissal was fair.
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