Yes, says the Employment Appeal Tribunal.

Most employers know that it is unfair to dismiss an employee if it is because they have made a “protected disclosure” (i.e. blown the whistle). However, in a recent case the Employment Appeals Tribunal (“EAT”) held that a dismissal was unfair even though the manager who decided to dismiss the employee believed that the reason was her incapability, not protected disclosures.

The case (Royal Mail Group Limited v Jhuti) is another reminder to employers that they need to have clear whistleblowing guidelines which all their employees understand. The dismissing manager wasn’t aware of the employee’s whistleblowing when she took the decision to dismiss the employee, because the information given to her was manipulated by the employee’s manager (who was motivated by the protected disclosures).

The claimant in this case made a number of protected disclosures to her manager in her first year of employment. Instead of supporting her, the claimant’s manager questioned her understanding of the rules and asked her to retract her allegations by email. Due to fear of losing her job the claimant reluctantly did so. The claimant was subsequently subjected to further detrimental treatment by her superiors. She went on sick leave and raised a grievance, and was offered a termination “package” worth a year’s salary, which she rejected.

The EAT heard that another manager was appointed to review the claimant’s case internally and they were given misleading information by the claimant’s previous manager. The investigating manager believed there were performance issues and the claimant was dismissed on the basis of her incapability.

As the claimant claimed her dismissal was because of her protected disclosures and was therefore automatically unfair, she did not require two years’ service in order to pursue an unfair dismissal claim.

Initially, the employment tribunal found that the claimant was not unfairly dismissed because there could only have been automatic unfair dismissal if the dismissing manager had been motivated by the protected disclosures.

But on appeal, the EAT held that a decision made by one person in ignorance of the true facts, which has been manipulated by someone else in a managerial position responsible for an employee who is in possession of the true facts, can be attributed to the employer. The dismissal was therefore automatically unfair because the employer’s true reason for it was the protected disclosures, even though that was not the motivation of the dismissing officer.

This principle comes from a Court of Appeal case and is important for employers to appreciate, because when trying to ensure a fair process they will often bring in a separate manager without prior knowledge of the situation. That manager needs to understand that they may have unfair motives attributed to them without knowing about those motives, and their investigation therefore needs to be careful, thorough and effective. Otherwise, the employer runs the risk of the investigating manager unknowingly making an unfair decision, as happened in this case.

The quality of an organisation’s policies, and training of managers, is key. If your organisation needs a whistleblowing policy, or you and/or your managers need training on any aspects of whistleblowing, disciplinary investigations and/or dismissals, we can help you.