Dismissal where true facts not known

02 September 2016

It is automatically unfair to dismiss an employee for making a protected disclosure (known as a ‘whistleblowing’ dismissal). This case looked at the knowledge element of that. In particular, what if the person who makes the decision to dismiss doesn’t know all the facts about the disclosure or about the bigger picture?

Royal Mail Group v Jhuti

It is automatically unfair to dismiss an employee for making a protected disclosure (known as a ‘whistleblowing’ dismissal). This case looked at the knowledge element of that. In particular, what if the person who makes the decision to dismiss doesn’t know all the facts about the disclosure or about the bigger picture?

Ms Jhuti had been working for Royal Mail for a year when she was dismissed. In the lead-up to that, she had suspected that a colleague had breached rules. But when she had given details of the suspected breach to her team leader, he had advised her to retract the allegation. She did that, fearing that she would otherwise lose her job.

From that point on, Ms Jhuti came under increased pressure at work. Unachievable goals were set, for example. She complained of harassment and bullying and went on sick leave.

Another manager took control of her case, but not her grievance. That manager – the dismissing officer - wasn’t given all the information about what had gone on; in particular, she wasn’t shown any of the emails relating to the disclosures Ms Jhuti had made. The manager accepted the team leader’s explanation that Ms Jhuti had made an allegation of misconduct but had retracted it because she had misunderstood the situation.

The tribunal held that, although Ms Jhuti had made protected disclosures and had suffered detriments, she had not been automatically unfairly dismissed. The dismissing officer was not motivated by the protected disclosures; they weren’t the reason for the dismissal. Ms Jhuti was genuinely believed to be a poor performer.

That was overturned on appeal. The Employment Appeal Tribunal held that the team leader’s motivation was relevant. It was significant, for example, that he was in a managerial position responsible for Ms Jhuti. He had realised that the protected disclosures made to him were serious and significant, and had lied to the dismissing officer about them. It was also relevant that he had set up a ‘paper trail which set her to fail’.

This should sound warning bells for employers. It won’t be enough to plead a dismissing officer’s ignorance of the facts. If their decision was manipulated by, as here, a manager who knew the true situation, employer liability will surely follow.


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