Can a dismissal be unfair where the real reason for the dismissal is hidden from the decision-maker?

The Supreme Court has handed down its decision in an appeal that concerned whether an employee’s dismissal could be automatically unfair on the grounds of whistleblowing, even where the dismissing officer did not know that protected disclosures had been made and had been misled by the employee’s manager to believe that the reason for dismissal was poor performance (Royal Mail Group v Jhuti [2019]).

Miss Jhuti was employed by Royal Mail, initially on a six-month trial period.  During the trial period she could be dismissed on one week’s notice.  Soon after starting, she began to suspect that members of her team were violating regulatory guidance.  She informed her manager, Mr Widmer, of her suspicions in several emails and then met with him.  Mr Widmer’s reaction was to question her understanding; he observed she was on trial and that her allegation could cause problems for everyone.  He suggested that she retract the allegation and admit she had made a mistake.  He also for the first time said she was failing to meet the requirements of the role.  Upset by his reaction, and fearing for her job, Ms Jhuti retracted the allegation.

Following the meeting, Mr Widmer, repeatedly told her that her performance was disappointing.  He introduced new targets for Ms Jhuti to meet and asked her to attend intensive weekly performance meetings and generally setting her up to fail in order to “pretend”, the Court decided, that her performance was inadequate.

Ms Jhuti sent an email to HR to complain about her treatment.  Nothing was done and a further email was sent in which she complained of bullying and harassment which, she believed, was because of her disclosures.

In due course, and after Ms Jhuti had been signed off sick, Royal Mail decided to appoint another officer, Ms Vickers, to decide whether Ms Jhuti should be dismissed for poor performance.  Ms Vickers had no prior knowledge of Ms Jhuti.  Ms Vickers was provided with various evidence concerning the alleged underperformance, but she was not given any of Ms Jhuti’s emails containing the disclosures and the emails to HR where she expressed her concerns.  Ms Vickers invited Ms Jhuti to an investigation meeting.  Ms Jhuti could not attend the meeting and responded in a series of emails in which she alleged she was being “sacked for telling the truth”.  Unaware of the basis for the allegation, Ms Vickers spoke to Mr Widmer, who told her in the briefest of terms that Ms Jhuti had alleged that there was improper conduct at Royal Mail, but that when he explained the situation to her she had been happy to accept that she had misunderstood what had occurred.

Having no reason to doubt the truthfulness of the material provided by Mr Widmer indicating Ms Jhuti’s inadequate performance, Ms Vickers decided to dismiss her for that reason.  Ms Jhuti did not attend the hearing as she was too ill.  Ms Jhuti lodged an appeal, which was rejected. She complained to the Employment Tribunal that she had been automatically unfairly dismissed as a result of making a protected disclosure.

At first instance, the Tribunal found that the reason for Ms Jhuti’s dismissal was not because she had made protected disclosures but for underperformance, having found that the dismissing officer genuinely believed, that Ms Jhuti had performance issues.  Albeit that her belief was based on tainted evidence.  Ms Jhuti appealed, and on further appeals, the claims reached the Supreme Court.

The Supreme Court held that Royal Mail had automatically unfairly dismissed Ms Jhuti because of her previous disclosures, even though the dismissing manager was unaware of those disclosures.

Generally, when determining the reason for the dismissal the courts need look no further than the mental processes of the person(s) who took the decision to dismiss.  However, the Supreme Court held that the courts should approach the problem in a broad and reasonable way in accordance with industrial realities and common sense.  In cases where the real reason for the dismissal is in dispute, the court will be under a duty to go behind that purported reason to determine the real reason for the dismissal.

Comment

Crucially, the principle established by this case will apply to ordinary unfair dismissal claims as well as automatic unfair dismissal.   At first glance it appears to make it harder for employers to avoid liability for unfair dismissal.

However, as the Supreme Court pointed out, the facts of the case are unusual.  It will be rare that a reason for dismissal is dishonestly constructed.  The effect of the decision is further qualified by the fact that it will only apply where the manipulation has been carried out by a person who is in the “hierarchy of responsibility above the employee”.  Thus, it will exclude manipulation carried out by an employee at the same level or lower.

So, what can employers take away from this?

  • Employers should ensure that dismissal decisions are based on accurate information and that employees facing disciplinary action are given a full opportunity to challenge the evidence and allegations.
  • If an employee is unable to attend any investigation or disciplinary meeting due to sickness, the employer should consider alternatives, e.g. arranging a meeting at an alternative venue or allowing the employee to make written representations.
  • Where there is a suggestion that there may be underlying motive(s) for disciplinary action, additional steps should be taken to investigate further.
  • Any whistleblowing complaints should be dealt with thoroughly. Ideally an employer will have a designated senior manager who can oversee such complaints.

Contact our employment team for more information