In this update we report on a recent Court of Appeal decision in England and Wales confirming that only the mind of the decision maker is relevant when determining an employer’s reasons for dismissing a whistleblower for the purpose of a claim for automatic unfair dismissal.
In Royal Mail Ltd v K Jhuti, Ms Jhuti was employed by the Royal Mail Ltd as a media specialist in the company’s Sales Division. Shortly after the commencement of her employment, she raised concerns to her direct manager, Mr Widmer, that her team might be in breach of OFCOM guidance in the way in which they were offering tailor-made incentives. During a meeting with Mr Widmer, Ms Jhuti was placed under great pressure to withdraw her complaint. In fear of losing her job, Ms Jhuti agreed and later emailed Mr Widmer apologising for getting her wires crossed.
Following the withdrawal of her concerns, Ms Jhuti was subjected to harsh and unreasonable criticism by Mr Widmer in relation to her performance. She registered a formal grievance about her treatment by Mr Widmer, was later signed off sick by her GP and ultimately did not return to work.
Ms Jhuti’s employment was evaluated by the Head of Sales Operations, Ms Vickers. Ms Vickers decided to terminate Ms Jhuti’s employment on the grounds of poor performance. However, Ms Vickers was misled about the nature and existence of Ms Jhuti’s disclosures. In particular, Ms Vickers was sent Ms Jhuti’s HR file but not the emails by which Ms Jhuti had raised her concerns. Also, when asked about the disclosures, Mr Widmer explained that Ms Jhuti had accepted that her concerns were based on a misunderstanding. Furthermore, Ms Vickers was unable to speak to Ms Jhuti during the process as Ms Jhuti was too ill to attend a meeting. Consequently, Ms Vickers believed that Ms Jhuti’s concerns had been settled and were irrelevant to her decision to dismiss.
Ms Jhuti brought proceedings for unlawful detriment contrary to section 47B of the Employment Rights Act 1996 (the ERA) and for automatic unfair dismissal contrary to section 103A of the ERA. This case and subsequent appeals considered whether the mind-set and motivation of Mr Widmer - the manager whose actions influenced the ultimate decision maker to dismiss the employee – were relevant when determining the reason for the dismissal.
The Employment Tribunal dismissed Ms Jhuti’s unfair dismissal claim, finding that Ms Jhuti’s protected disclosures were not the reason for her dismissal because they did not affect Ms Vickers' thought process. The Employment Appeal Tribunal (EAT) overturned this decision on the basis that “a decision of a person made in ignorance of the true facts whose decision is manipulated by someone in a managerial position responsible for an employee, who is in possession of the true facts, can be attributed to the employer of both of them.”
In reaching this decision, the EAT took into account the points that Ms Jhuti had made disclosures to Mr Widmer which he realised were serious, Ms Jhuti was deliberately subject to detriments by Mr Widmer, Mr Widmer set up a paper trial which set Ms Jhuti up to fail, Mr Widmer had lied about the disclosures to Ms Vickers and Ms Vickers was deprived of relevant information. The EAT held that, in these circumstances, it is not only the mental process of Ms Vickers which needed to be considered when determining the employer’s reason for dismissal. The reasons and motivation of Mr Widmer should also have been considered. Taking into acccount Mr Widmer’s role in and motivations towards the dismissal process, it was clear that the reason for Ms Jhuti’s dismissal was that she had made protected disclosures to him.
The Court of Appeal reversed the decision of the EAT by reference to its decision in the case of Orr v Milton Keynes Council - it held that, when deciding the reason for the dismissal in a claim of automatic unfair dismissal on grounds of whistleblowing, only the mental processes of the person who was authorised to, and did take, the decision to dismiss are relevant. Therefore, it was only the mental process of Ms Vickers that was relevant - Ms Vickers had not been aware of and therefore had not considered Ms Jhuti’s disclosures and so the dismissal was not by reason of those disclosures.
Claims of this sort will inevitably depend on the Employment Tribunal’s findings of fact with regard to who knew what about the employee’s protected disclosures and what the true reason for dismissal was. The Jhuti decision could result in an employer avoiding liability for automatic unfair dismissal on grounds of whistleblowing where the decision maker’s decision to dismiss is made in ignorance of the employee having made protected disclosures but is nonetheless manipulated by another party because of those disclosures. However, in such circumstances, the employee might still be able to recover compensation for the detriment to which the employee was subjected by the person manipulating the situation.
The Court of Appeal also suggested that an employer might not escape liability for automatic unfair dismissal on grounds of whistleblowing if the person manipulating the dismissing officer’s decision is a manager with a formal role in the decision making process or some responsibility for the investigation leading to the dismissal.
The Jhuti case is perhaps unusual in terms of its specific facts and the detailed legal arguments with which the Tribunal had to grapple in determining the basis for the employer’s decision to dismiss. The risk of problems of the sort addressed in the Jhuti case arising can be addressed by employers ensuring that they have clear whistleblowing policies in place - in order to encourage the making of disclosures to appropriate people within the business - and by ensuring that disciplinary and similar processes are as thorough as possible in terms of investigation of the relevant issues and an appropriate procedure is followed with the employee in question.