Employers must not subject an employee to a detriment (including dismissal) because they have made a protected disclosure. If the main reason for dismissing an employee is that they made a protected disclosure, the dismissal will be automatically unfair.
Usually, it is the facts known to the person making the decision to dismiss that are relevant to an unfair dismissal claim, rather than any other facts which might be known to other employees. In the 2019 case of Royal Mail v Jhuti, however, the Supreme Court confirmed a narrow qualification to this rule: if a manager decides that an employee should be dismissed for one reason (for example, whistleblowing) but hides that behind another false reason (such as performance or conduct) which the dismissing officer adopts, then the reason for the dismissal is the hidden reason.
In the recent case of Kong v Gulf International Bank, the employee made protected disclosures about a legal agreement for a financial product. The person who had drafted the agreement, the Bank’s Head of Legal, confronted the employee, who queried the Head of Legal’s knowledge of the relevant issues. The Head of Legal then complained to HR and the CEO, saying the employee had questioned her professional integrity rather than her legal knowledge. She gave the impression that she couldn’t work with the employee anymore and minimised their contact. There had been previous issues about the employee’s interactions with colleagues. As a result, HR and the CEO decided that the employee should be dismissed. They drew up a report about the issues, including the current and past colleague incidents, and persuaded her manager that dismissal was appropriate. They told the employee that she was being dismissed because of her manner and approach with colleagues, not the protected disclosures. The employee brought claims for whistleblowing detriment, unfair dismissal and automatic unfair dismissal.
The employment tribunal upheld the ordinary unfair dismissal claim. It also said the detriment claim – for her treatment by the Head of Legal - would have won but for being lodged out of time. However it dismissed the automatic unfair dismissal claim. The decision makers – HR, the CEO and the employee’s manager – had decided to dismiss based on the employee’s conduct, not the protected disclosures. Even though there was an element of invention by the Head of Legal, by saying the employee questioned her integrity rather than her knowledge, it wasn’t right to attribute her motivation to the employer.
The EAT agreed. The Jhuti exception only applies in extreme circumstances. Whether the Head of Legal had perceived the criticisms as relating to her integrity or her knowledge was nowhere near the kind of invention or manipulation necessary to meet the Jhuti principles. In this case, the dismissing managers had full knowledge of the facts, including the whistleblowing, and had not been misled by the Head of Legal’s ‘invention’ about the reason for her being upset. The Head of Legal was not involved in the employee’s dismissal and, when asked, said she was unsure whether it was merited. It was also relevant that the Head of Legal, though more senior than the employee, was not in the employee’s chain of managerial reporting. The EAT said the employee’s concerns about the Head of Legal’s knowledge were separable from the whistleblowing about the legal agreement and the tribunal had carefully deliberated about the principal reason for the dismissal. The issue here was not the employee’s views on the legal agreement – the whistleblowing – but the way she had conveyed them, in circumstances where she had form for ruffling colleagues’ feathers.
This case confirms that the Jhuti exception will be extremely rare. There is a big difference between entirely invented allegations about an employee’s performance (Jhuti) and the kind of ‘manipulation’ potentially relevant in this case, with the Head of Legal, either intentionally or otherwise, side-stepping direct allegations about her competence and alleging her integrity had been brought into question. It’s worth noting that the claim of whistleblowing detriment relating to the employee’s treatment at the hands of the Head of Legal was a good claim, but for timing. But that didn’t mean that the necessary causation was there to connect the employee’s dismissal to the whistleblowing as well.