If a manager takes a decision to dismiss in good faith, can an employee succeed with a claim that another manager's actions mean that the dismissal is really because the employee had blown the whistle? Yes, according to the Supreme Court in Royal Mail Group Ltd v Jhuti.
Ms Jhuti made protected disclosures to her line manager. After those disclosures, the manager alleged over a period of months that Ms Jhuti was not performing her duties adequately, in effect setting her up to fail by creating a false picture of inadequate performance. Ultimately she was dismissed by another manager, who genuinely believed that the dismissal was for poor performance. The issue for the Supreme Court was whether the protected disclosures were the reason or principal reason for the dismissal.
It found that they were. The Court had to decide whether to attribute the knowledge of the line manager who instigated the performance process or that of the dismissing manager to the employer. In most situations, it will be sufficient to examine the reasons given by the decision maker. However, in this case those reasons were bogus as a matter of fact. If someone senior to an employee has decided that they should be dismissed because they have blown the whistle, but has hidden that reason behind an invented reason, it is the court's duty to look through the invention to find the true reason for the dismissal. As long as the individual that has orchestrated the dismissal is senior to the employee, there is no difficulty in attributing that person's state of mind to the employer. In this case it was Ms Jhuti's line manager's reason for dismissing her – the fact that she had blown the whistle – which was the real reason for the dismissal.
The Supreme Court observed that although the issue is of general importance, the facts of this particular case were extreme. It will hopefully be unusual for an employee to be dismissed for a reason that a line manager has dishonestly constructed. However, as our item on the decision in Cadent Gas Ltd v Singh shows, the issue is not perhaps as uncommon as might at first appear.