Does a decision maker need to be aware of the whistleblowing allegations before an employee can successfully claim automatic unfair dismissal on the basis he has been dismissed principally for having made a protected disclosure?
Yes, said the Court of Appeal in Royal Mail Ltd v Jhuti reversing the view of the EAT which held 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.” The Court of Appeal held that the correct test is to determine what the decision maker actually knew.
A short period into her new role as a media specialist for Royal Mail’s Sales Division, Ms Jhuti noticed what she thought were irregularities in the way that customers were being offered incentives. She believed that these were contrary to regulatory guidelines and reported her concerns to her manager.
Ms Jhuti’s relationship with her manager became strained and she was subject to continuous performance criticism. Her case was assigned to an HR investigation officer to conduct a full review. Ms Jhuti’s manager did not inform the HR investigator of Ms Jhuti’s concerns about the irregularities and she was subsequently dismissed. Ms Jhuti claimed that she had been automatically unfairly dismissed for making protected disclosures.
The Court of Appeal held that only the mental processes of the person(s) authorised to and who took the decision to dismiss should be considered. Ms Jhuti was successful in her claim for detrimental treatment in relation to the acts of her manager, which is a separate claim from dismissal. Royal Mail argued that her losses should be restricted to her detriment claims only and not relate to her dismissal. However the Court said that there may be situations where the losses arising from the detriment claim are sufficiently connected with the dismissal that a claimant could argue this at the remedy stage.
While this case is to be welcomed by managers, and in this case resulted in a successful appeal by Royal Mail, there remains an onus to investigate the position properly before making a decision to dismiss.
The case also illustrates the need to be live to the issue that a manager may attempt to conceal disclosures which have been made to them in the context of an investigation. It is likely to be good practice for investigators to check if protected disclosures have been made in such cases. There is a balance to be struck about opening new lines of enquiry and mitigating risks arising from a detriment claim. In some cases employers might consider that not enquiring is a lower risk option.
One of the lines of argument in this case related to the issue of manipulation of the facts. The claimant argued that her manager’s conduct in withholding information about the disclosures amounted to an attempt to procure her dismissal. On the facts of this case, the Court said that this motivation was not shared by the decision maker and therefore they were not required to express a view on this. The situation however may be different where a senior manager seeks to influence an outcome and their motivation for dismissal is passed on to the decision maker.