The Court of Appeal has considered whether an individual can be unlawfully dismissed for whistleblowing, if the person who made the decision to dismiss was ignorant of the protected disclosure.

Royal Mail Ltd v Jhuti, Court of Appeal

Facts

Ms Jhuti suspected that a colleague had acted in breach of Royal Mail and Ofcom rules and reported her concerns to her line manager, Mr Widmer. He questioned whether Ms Jhuti properly understood the relevant rules and advised her to send an email to retract her allegations. Subsequently, he required her to attend weekly meetings and set her unattainable targets. She later complained to HR about her treatment, claiming she was being harassed and bullied as a result of her disclosures.

While on sick leave, she raised a formal grievance. Her employment was eventually terminated by another manager, Ms Vickers, who had been appointed to review her case (excluding the grievance). Ms Vickers was not given any of the emails containing Ms Jhuti’s disclosures, and was only given a brief outline of the background by Mr Widmer. She did not meet with Ms Jhuti as she was unwell. Ms Jhuti brought a claim for automatic unfair dismissal resulting from her protected disclosures. The employment tribunal accepted that she had been subjected to detriments as a result of making protected disclosures, but found that she was not automatically unfairly dismissed as the decision-maker (Ms Vickers) had not been motivated by the protected disclosures.

On appeal, the Employment Appeal Tribunal held that a decision made by a person in ignorance of the true facts, which is manipulated by someone else in a managerial position who is in possession of the true facts, can be attributed to their employer. It held that Ms Jhuti’s dismissal was automatically unfair. Royal Mail appealed to the Court of Appeal.

Court of Appeal decision

The Court of Appeal has upheld the employer’s appeal, holding that the dismissal was fair. The employer’s reasonable belief at the time of the dismissal had to be determined by reference to what the decision-maker actually knew, not what knowledge ought to be attributed to them. Unfair or unlawful conduct on the part of individual colleagues or managers is immaterial unless it can be properly attributed to the employer. The court recognised that there may be circumstances, depending on the status of the manipulator, where the fairness of the dismissal might be affected. For example, if there is manipulation by a manager with responsibility for a disciplinary investigation, or where the manipulator is near the top of the management hierarchy and who might procure an employee’s dismissal.

Consequences

This is a welcome decision for employers, who are now less likely to be held liable in circumstances where a dismissing manager might not have been given a true or accurate account of the situation. However, this does not absolve an employer from carrying out a thorough investigation before making the decision to dismiss an employee. A failure to do so, in circumstances where protected disclosures have been made, is likely to result in a finding of automatic unfair dismissal and/or detriment.