06 November 2017

An employee is entitled not to be dismissed for whistleblowing – or making a ‘protected disclosure’ to use the language of the legislation. But how can you tell what the reason for dismissal is if it is the result of the actions of more than one manager – only one of whom may have had the disclosure in mind?

In Royal Mail Ltd v Jhuti the employee had made internal disclosures about the way in which existing customers had been offered incentives that she alleged breached OFCOM guidance. When her manager heard of these disclosures he was very hostile towards her – even forcing her to draft an apology. She was a new employee and had to pass her probation period in order to have her employment confirmed, but found that the behaviour of her manager towards her was the cause of increasing stress. She was eventually signed off as sick and subsequently dismissed.

The decision to dismiss her was made by another manager who genuinely believed that she was unable to meet the standards required of her. That decision was made on the basis of misleading information given by her line manager, but the tribunal found that that fact was not sufficient to mean that the protected disclosures formed part of the reason for dismissal. Accordingly, while Ms Jhuti had been subjected to an unlawful detriment in the way in which she had been treated by her line manager, she had not been automatically unfairly dismissed for making a protected disclosure.

The case reached the Court of Appeal, which agreed with this approach. The reason for the employer’s decision to dismiss an employee could only refer to the mental processes of the person who actually made the decision. In this case, the person who decided to dismiss did not do so because the employee had made a protected disclosure. It followed that the dismissal was not automatically unfair – and of course the employee did not have sufficient service to claim unfair dismissal on the normal principles of reasonableness.

This did not mean, however that the employee was unable to recover for the losses she had suffered as a result of her dismissal. The Court of Appeal held that if the action taken by Ms Jhuti’s line manager led to her being dismissed, then the compensation awarded by the tribunal for unlawful detriment could take into account the loss caused by her dismissal. The matter was sent back to the tribunal to decide on the appropriate remedy.

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