A worker must not be subjected to any detriment by their employer on the grounds that they have made a protected disclosure (section 47B Employment Rights Act 1996). If the main reason for an employee's dismissal is the fact that they have made a protected disclosure, the dismissal will be automatically unfair (section 103A Employment Rights Act 1996). 

In the case of Royal Mail Group Limited v Ms K Jhuti, the Claimant was employed by Royal Mail Group Limited from September 2013 until October 2014. The Claimant raised concerns over regulatory breaches and was consequently deliberately subjected to detriments and dismissed. The Claimant’s line manager manipulated the facts and led the investigator of the Claimant's grievance and dismissal appeal to believe she was a poor performer, which was not the case. The investigator never had the opportunity to interview the Claimant because she was unwell. Accordingly the investigator terminated the Claimant’s employment on the grounds of performance. 

The Claimant lodged an appeal, which was rejected. The Claimant then complained to an Employment Tribunal that she had been automatically unfairly dismissed as a result of making protected disclosures.

Although the Employment Tribunal found the Claimant had made protected disclosures under section 47B Employment Rights Act 1996 and that she had been subjected to detriments, in the form of bullying and harassment, it found that the Claimant was not automatically unfairly dismissed. The investigator had not been provided with the evidence which formed the basis of the Claimant’s protected disclosures and genuinely believed the Claimant was a poor performer. 

However the Employment Appeal Tribunal held that a decision of a person made in ignorance of the true facts whose decision is manipulated by someone in a managerial position responsible for an employee, who is in the possession of the true facts, can be attributed to the employer.

Therefore, it was not only the mind of the investigator which needs to be examined to discern the Respondent’s reasons for dismissal; the reason and motivation of the line manager must also be considered and once it was, it was inevitable that the Respondent would be found to have been dismissed because the Claimant had made protected disclosures.

Comment

The decision highlights the importance of a thorough investigation to avoid a finding of automatic unfair dismissal in these circumstances. For instance, in this case the Claimant complained to HR several times so they were, or should have been, aware of what was going on and should not have been so ready to rely on the line manager’s account of events. 

Unfortunately the decision does not clarify whether the manipulation of the facts is required by someone who is in a managerial position and responsible for an employee (or worker), and whether those qualities are necessary for the true facts be attributed to the decision maker. For instance, it is unclear whether the same view be taken if the manager who manipulates the facts does not have responsibility for the employee or if both are operating at the same level.