Following the Court of Appeal's decision in CLFIS (UK) Ltd v Reynolds [2015] IRLR 562, the thought processes and motivation of the decision-maker, and not those providing information to the decision-maker, should be considered when deciding whether there has been direct discrimination.

In Royal Mail Group Ltd v Jhuti UKEAT/0020/16, the Employment Appeal Tribunal (EAT) had to consider whether the same principle applied to an alleged automatic unfair dismissal on the grounds that the employee had made protected disclosures, in circumstances where the dismissing manager was unaware of the protected disclosures.

Facts

Ms Jhuti was employed by Royal Mail Group Ltd (Royal Mail) as a probationary media specialist from September 2013 until her dismissal in October 2014. Ms Jhuti therefore did not have the two years’ continuous service she needed to bring an ordinary unfair dismissal claim.

Shortly after joining Royal Mail, Ms Jhuti accompanied a media specialist to a client meeting. As a result of things said and done in that meeting, Ms Jhuti suspected that her colleague was in breach of both Royal Mail’s rules (which had been explained to Ms Jhuti during her induction process) and the requirements of Ofcom, which regulated Royal Mail’s activities.

Following this meeting Ms Jhuti emailed her manager, Mr Widmer, setting out her concerns about the suspected breaches of the rules and regulations. Ms Jhuti subsequently met with Mr Widmer, during which she explained in detail what had happened in the client meeting. Rather than question her account of what happened and the potential for fraud, Mr Widmer’s response was to question Ms Jhuti’s understanding of the rules and regulations and suggested that it would be better if she admitted that she had made a mistake. He advised her to send an email retracting her concerns which, upset by the meeting, she agreed to do. Her email was sent later that evening.

After the meeting, Ms Jhuti was required to attend weekly meetings with Mr Widmer to monitor her progress and “an ever changing unattainable list of requirements” was set for her by Mr Widmer. In February 2014, Mr Widmer set a performance plan for Ms Jhuti. This included a requirement for Ms Jhuti to compile a list of key clients from her previous employment. Ms Jhuti believed that complying with this would be a breach of the law and so emailed HR to raise concerns about the way she was being treated. A meeting was held with HR later that month but the response was an assertion that Mr Widmer was a respected manager and Ms Jhuti was asked whether the company might not be the right company for her.

Following further meetings with Mr Widmer, Ms Jhuti emailed HR again to complain that she was being bullied and harassed because of the disclosures she had made. Ms Jhuti subsequently went on sick leave and raised a formal grievance. Royal Mail offered Ms Jhuti a termination package of one year’s salary, which she declined.

Ms Vickers was appointed in April 2014 to review Ms Jhuti’s position with Royal Mail (but not her grievance). Ms Vickers had no knowledge of the background to the matter and did not see any of the emails previously sent by Ms Jhuti in which she had set out her disclosures. Ms Vickers raised the issue with Mr Widmer and, by email, he informed Ms Vickers that Ms Jhuti had raised concerns with him but she had accepted that she had misunderstood the situation. In support, he enclosed a copy of the email that Ms Jhuti had sent following her initial meeting with him in 2013. It appears that Ms Vickers did not carry out any further investigation and simply accepted Mr Widmer’s assertions. As Ms Jhuti was still on sick leave, Ms Vickers did not meet with her.

Ms Vickers terminated Ms Jhuti’s employment for poor performance. Ms Jhuti’s appeal against dismissal, which included a 14 page document setting out her case and the allegations she had made, was dismissed (as was the grievance she had raised previously). Ms Jhuti submitted an employment tribunal claim, alleging that she had been automatically unfairly dismissed for making protected disclosures.

Employment tribunal decision

The employment tribunal (ET) found that Ms Jhuti had made protected disclosures and that she had been subjected to detriments by being bullied and harassed by Mr Widmer and by the offer of a termination package. However, in the light of CLFIS v Reynolds, there was no automatic unfair dismissal because Ms Vickers was unaware of the protected disclosures and accordingly these had not formed part of her decision-making. Her decision was motivated by the fact that she believed Ms Jhuti was a poor performer. Ms Jhuti appealed.

Employment Appeal Tribunal decision

The EAT allowed the appeal, finding that the principle in CLFIS only applied to cases of direct discrimination and not whistleblowing.

In deciding whether or not someone has been automatically unfairly dismissed, the ET has to start with the statutory language and what must be determined is “the reason (or, if more than one, the principal reason) for the dismissal”. Usually, this would simply involve the ET discerning the set of facts known to the person who made the decision to dismiss.

However, in cases where the decision-maker is ignorant of the true facts and is manipulated by someone in a managerial position responsible for an employee, who is in possession of the true facts, the reason and motivation of that other person must also be taken into account and attributed to the employer.

  • Mr Widner was Ms Jhuti’s manager;
  • She had made protected disclosures to him, which he realised were serious and significant;
  • From the moment of disclosure, she was subjected to detriments by him;
  • Mr Widner’s temporary replacement had treated her in the same way;
  • Mr Widner had successfully set up a “paper trail which set her to fail”;
  • Mr Widner lied to Ms Vickers about the disclosures and withheld copies of emails sent by Ms Jhuti; and
  • Ms Vickers was inexplicably deprived of information from HR in respect of Ms Jhuti’s emails and by the decision to separate her grievance from performance issues.

Taking Mr Widner’s reason and motivation into account, the EAT held that Ms Jhuti had been dismissed because she had made protected disclosures.

Comment

The case is worrying for employers, who may now find that the reason and motivation of people other than the ultimate decision-maker is to be attributed to the employer, even in circumstances where such reason and motivation is undisclosed and information deliberately withheld.

Although the decision makes it clear that there is a distinction between claims for discrimination and whistleblowing, the former not requiring the thought process and motivation of the information provider to be taken into account, there remains uncertainty. The EAT seemed to place much weight on the fact that Mr Widner was in a managerial position and responsible for Ms Jhuti. It is unknown whether the principle that the motivation of the information-provider should be taken into account would also apply in circumstances where the manipulation was carried out by someone at the same level as the claimant or by someone who was not responsible for the claimant.

The decision also highlights potential risks where various processes (such as grievance and disciplinary matters) are split between different individuals within an organisation. While there are often good reasons for doing this, for example to preserve independence, employers should be aware that there might be overlap between them and that processes should not always be addressed in isolation.

The case is also a useful reminder that employers should not always take responses at face value and should be prepared to conduct further investigation where necessary. This case does present difficulties for employers where employees deliberately withhold information. However, Ms Vickers was aware that Ms Jhuti had raised concerns and, had she conducted further investigation and, for example, liaised more closely with HR, she might have discovered more about the background that would have placed the letters and emails from Ms Jhuti which she had seen (and which she had previously characterised as “irrational”) into context and might have been more willing to challenge Mr Widmer’s account.

Managers who are considering terminating the employment of someone with less than the period of continuous service necessary to claim unfair dismissal should consider making enquiries of the employee’s line manager and HR to ascertain whether any protected disclosures have been made. While this will not protect employers against any deliberate withholding of information, it might uncover some additional information that warrants further investigation before a final decision is made.