The Supreme Court has held that a dismissal can be automatically unfair for having made a protected disclosure, even where the dismissing officer did not know that protected disclosures had been made and had been misled by the employee's line manager to believe that the reason for dismissal was poor performance (Royal Mail Group Ltd v Jhuti).
If the reason (or principal reason) for an employee's dismissal is that they made a protected disclosure, their dismissal will be automatically unfair.
Ms Jhuti was employed as a media specialist but was dismissed after less than a year on performance grounds. Shortly before her dismissal, she'd raised concerns to her line manager about some potentially criminal conduct by a colleague. Immediately after raising these issues, her line manager started a performance management process with her, stating that she had been failing to perform adequately.
The employer appointed another manager to decide whether or not Ms Jhuti ought to be dismissed on performance grounds, although that manager was not provided with evidence about the fact that Ms Jhuti had first raised internal compliance issues before her line manager instigated the performance management process. Ultimately, the dismissing officer decided to terminate Ms Jhuti's employment on the grounds that she was not performing to the required standard. When Ms Jhuti's appeal against her dismissal failed, she brought a number of claims including a claim that she had been automatically unfairly dismissed because she had made a protected disclosure.
Employment Tribunal, Employment Appeal Tribunal and Court of Appeal
The Tribunal decided that the reason for Ms Jhuti's dismissal was not that she had blown the whistle but the dismissing officer's genuine belief, albeit based on skewed instructions, that Ms Jhuti had performance issues. Ms Jhuti appealed to the Employment Appeal Tribunal who allowed her appeal, stating that Ms Jhuti's line manager's conduct was in response to her whistleblowing and therefore that the real reason for dismissal was her making protected disclosures.
However, the Court of Appeal allowed the employer's appeal, stating that, in determining the reason for dismissal a Tribunal is "obliged to consider only the mental processes of the person or persons who was or were authorised to, and did, take the decision to dismiss". In other words, what mattered was the state of mind of the dismissing officer who dismissed Ms Jhuti. In this case, that was the dismissing officer whose instructions on dismissal had been manipulated by Ms Jhuti's line manager.
The Supreme Court held that, in determining the reason for dismissal, the courts should approach the problem in a broad and reasonable way in accordance with industrial realities and common sense to look behind the reason given by an employer and evaluate the evidence to discern the real reason for dismissal.
Generally, the courts will need to look no further than the reasons given by the appointed decision-maker, as, unlike Ms Jhuti who was too ill to attend the capability hearings, most employees will contribute to the decision-maker’s inquiry and the decision-maker will generally address all rival versions of what has prompted the employer to seek to dismiss the employee. However, in this case, the reason for the dismissal given in good faith turned out to be bogus and Mrs Jhuti was not present at the dismissal hearing to challenge the reason for dismissal. In this circumstance, the Supreme Court held that if a person in the hierarchy of responsibility above the employee (here, Ms Jhuti’s line manager) determines that, for reason A (making a protected disclosures), the employee should be dismissed but that reason should be hidden behind an invented reason B (inadequate performance) which the decision-maker accepts, "…it is the court’s duty to penetrate through the invention rather than to allow it also to infect its own determination."
The Supreme Court concluded that: "If a person in the hierarchy of responsibility above the employee determines that she (or he) should be dismissed for a reason but hides it behind an invented reason which the decision-maker adopts, the reason for the dismissal is the hidden reason rather than the invented reason."
This case is a reminder to employers of the importance of following an impartial and transparent dismissal process, and that Employment Tribunals tend to take a broad view of any evidence presented to them. Here, there was enough evidence presented to the Tribunal to allow them to make findings supporting the view that Ms Jhuti's line manager had manipulated the dismissal process by colouring the judgment of the dismissing officer.
Crucially, the principle established by this case will apply not only to automatic unfair dismissal but also to ordinary unfair dismissal. Therefore, when dismissing an employee, employers should always be ensuring that the reason being advanced is sufficiently backed up by evidence. To help achieve this, managers should be reminded of their general responsibilities and obligation to act with integrity on behalf of their employer and training should be provided to all individuals involved in either investigating or chairing disciplinary/appeal hearings on the scope of their role and the importance of probing all versions of any evidence presented to them at such hearings, including the truth behind the reason advanced for dismissal.