Whistleblowing and awareness of the disclosure
A dismissal will be automatically unfair if the main reason for the dismissal is the fact that the employee has 'blown the whistle' on malpractice.
The Supreme Court has recently decided that an employer was liable for automatic unfair dismissal even though the decision maker was unaware of the protected disclosures.
In Royal Mail v Jhuti, the employee made protected disclosures about suspected breaches of Royal Mail rules and Ofcom requirements. She told her team leader who suggested her allegations could cause problems for everyone. He suggested she retract them. The team leader then raised performance issues for the first time. The employee was upset and worried about her job and so retracted the complaint. She was then subject to performance management with unrealistic targets and expectations which she said were detriments because of the protected disclosure. Another manager was appointed to consider her dismissal for poor performance. This manager was not given the details about the whistleblowing allegations. She was told that the employee accepted that it had been a misunderstanding. She dismissed the employee for poor performance.
The Supreme Court said the employee had been unfairly dismissed. If a more senior employee decides someone should be dismissed but hides the real reason in something else (such as underperformance) which the decision maker accepts, the reason for dismissal is the hidden reason. In this case, the real reason for the employee's dismissal was the fact that she had blown the whistle, rather than poor performance.
Employers should ensure that dismissing officers ask for full details of any allegations raised by an employee, especially ones relating to whistleblowing or discrimination to ensure that they have a full picture of the circumstances leading up to the potential dismissal. This level of manipulation by managers will be rare but can be costly so care must be taken.