Royal Mail Ltd v Jhuti [2017] EWCA Civ 1632

Why care?

All workers are protected from detriment on the ground that they have made a protected disclosure. In addition, employees can claim automatically unfair dismissal if they are dismissed for the sole or principal reason that they have made a protected disclosure.

In this case, the Court of Appeal decided that a decision to dismiss a whistleblower should be judged by what the decision-maker actually knew at the time of the decision, not what she ought to have known (but was not disclosed to her by a colleague).

The case

The Claimant worked as a media specialist promoting the use of mail by businesses for marketing purposes. She had a six month probationary period.

Sales-staff were entitled to offer discounts (called tailor-made incentives) to new clients, or to existing clients for new products, but it is a breach of Ofcom guidance for such discounts to be offered for existing business.

Not long after her employment began, the Claimant reported in two emails, dated 8 and 12 November 2013, to her manager her concerns that colleagues were offering discounts inappropriately. On 13 November, the Claimant and her manager (Mr Widmer) met to discuss her emails. The Employment Tribunal found that at the meeting, he put her under great pressure to withdraw her allegations, and gave a clear but veiled threat that if she did not, her employment would not continue beyond her probation period. He told her to write to him withdrawing her allegations and saying that she had misunderstood the rules. That evening, she did so, apologising for having “got her wires crossed”.

Mr Widmer was critical of the Claimant’s performance and imposed what she believed were harsh and unreasonable requirements for improvement. In February 2014, the Claimant complained to the HR department; she later raised a grievance but was then signed off with work-related stress.

Pauline Vickers, the Head of Sales Operations, was asked to review the situation but the file sent to her by HR did not include the Claimant’s emails of 8 and 12 November. Having reviewed the correspondence, Ms Vickers wrote to the Claimant on 11 July 2014 explaining that she was considering the termination of her employment and inviting her to respond, either at a meeting or in correspondence. The Claimant referred in her response to the allegations she had made. Ms Vickers asked Mr Widmer to explain and he did so in another email, describing how he had dealt with the Claimant’s concerns and providing a copy of the Claimant’s email of 13 November 2013 retracting her allegations. He did not supply a copy of the original emails detailing her concerns to Ms Vickers.

On 21 July, Ms Vickers wrote to the Claimant giving her three months’ notice, explaining that the reason for termination was unsatisfactory performance, and that she had not taken the “misunderstanding” around tailor-made incentives into account. The Claimant’s appeal against her dismissal failed. She brought a claim for automatically unfair dismissal.

The London Central Employment Tribunal held that although the Claimant had made protected disclosures to Mr Widmer, and had been subjected to bullying and harassment by him because of that, the Claimant had not been automatically unfairly dismissed. Ms Vickers had made the decision to dismiss on the information she had been given by Mr Widmer, and there were no grounds for saying her decision was based upon Mr Widmer’s motivation.

The Respondent appealed to the Employment Appeal Tribunal. The EAT found that the reason and motivation of Mr Widmer must also be taken into account and attributed to the employer when considering the reason for dismissal, and that once it was found by the Employment Tribunal to be inevitable that the dismissal would occur and it did occur because the Claimant had made protected disclosures, the unfair dismissal claim should succeed.

The Court of Appeal found that the dismissal was fair. What the employer reasonably believed at the time of dismissal has to be determined by reference to the mind of the decision-maker at that time, and not to that which she should have had.

What to take away

The decision applies the reasoning in an unfair dismissal case, Orr v Milton Keynes Council (2011) and applies it more generally – there is no justification for treating different forms of unfair dismissal inconsistently. The focus should be on the knowledge the decision-maker has, not on all the information known to the employer (which would include the motivation of other employees).

In International Petroleum v Osipov , the EAT held that an employee could bring a detriment claim against an individual for the decision to dismiss, and that such an individual could be held with the employer jointly and severally liable for post-dismissal losses.