The Supreme Court has confirmed in Royal Mail v Jhuti that when looking at the employer’s reason, or principal reason, for dismissal, the court can take into account the hidden knowledge and motivations of another employee who has manipulated the circumstances resulting in the dismissal.
Ms Jhuti made whistleblowing allegations to her line manager who dismissed her concerns but who immediately started to performance manage her and set unattainable targets. This led to her being off sick and she was eventually dismissed for poor performance by another manager who was unaware of the whistleblowing allegations.
The EAT found that knowledge and motivation of the manipulator should be imputed to the employer and the employer was liable for automatic unfair dismissal for whistleblowing. The Court of Appeal disagreed and held that an employer cannot be deemed to have knowledge of all the facts known to its employees. That decision follows the rationale of an earlier direct discrimination case in which the Court of Appeal held that the tribunal should focus on the thought processes of the decision–maker and not those who have provided information to them.
However, the Supreme Court decided that where a senior employee in the hierarchy of responsibility influences the decision to dismiss, it is the court’s duty to look beyond the invented reason to the real reason for dismissal. It considered that in these circumstances it is appropriate to attribute to the employer the state of mind of that senior employee, rather than consider only that of the decision-maker.
In practice, it will be difficult for employers ensure that a decision to discipline or dismiss has not been manipulated by a senior employee other than the decision maker, but the facts in this case are extreme and unusual. It remains the case that in most dismissals, it will be the knowledge of the decision-maker that is relevant to the tribunal when assessing the reason for the dismissal. Further, even where that has been unlawful interference with the process, this decision appears only to apply where the manipulator is senior to the individual being dismissed. However, a prudent decision maker will should be alive to the risk of manipulation before reaching a decision.
It should be noted that this decision applies both to “ordinary” unfair dismissal as well as claims for automatic unfair dismissal. This case also means there is now a distinction between the approach to knowledge of the decision-maker in unfair dismissal claims and that of discrimination cases - where only the decision-maker’s reasoning is taken into account.