If a colleague manipulates a decision to dismiss a whistleblower but has no involvement in the actual dismissal, should the motivation of that colleague be attributed to the employer? No, the Court of Appeal has held in Royal Mail v Jhuti.
The tribunal is only obliged to consider the mental processes of the person(s) who were authorised to and took the decision to dismiss. It is immaterial if the decision to dismiss has been manipulated by unfair or even unlawful conduct on the part of individual colleagues or managers unless it can properly be attributed to the employer.
The Court of Appeal decision means that there is no longer a distinction between the whistleblowing regime and the direct discrimination regime. With both, the focus should be on the thought process and motivation of the actual decision-maker.
Ms Jhuti raised protected disclosures with her line manager who then subjected her to a range of detriments. These included bullying and harassing her, as well as requiring her to attend weekly meetings and putting her on a performance plan.
She went off sick and was subsequently dismissed on the grounds of poor performance. During the dismissal investigation, Ms Jhuti's line manager deliberately misled the dismissing officer about the protected disclosures that had been made. As a result, when making the decision to dismiss, the dismissing officer was ignorant of the protected disclosures that had been made.
In 2016, the Employment Appeal Tribunal (EAT) held that Ms Jhuti's dismissal was automatically unfair despite the decision maker not being made aware of the protected disclosures she had made. The EAT found that a decision could be attributed to the employer where the decision-maker, in ignorance of the true facts, had been manipulated by someone in possession of the true facts and who was in a managerial position responsible for the employee.
The Court of Appeal has now reversed the EAT decision, holding that Ms Jhuti was not automatically unfairly dismissed. In an unfair dismissal claim (including a whistleblowing claim for automatic unfair dismissal) the employment tribunal is only obliged to consider the mental processes of the person(s) who were authorised to and took the decision to dismiss. Only this person (or persons) counts as the employer for these purposes.
It is immaterial if the decision to dismiss has been manipulated by unfair or even unlawful conduct on the part of individual colleagues or managers unless it can properly be attributed to the employer.
The judgment helpfully considers manipulation of the decision to dismiss by different persons (on the basis that the dismissing officer was not, on the facts, aware of the protected disclosures):
- A colleague with no relevant managerial responsibility for the victim – this would not be an unfair dismissal as his/her knowledge and motivation would not be attributed to the employer.
- The victim's line manager who does not have responsibility for the decision to dismiss – this would not be an unfair dismissal, as in the present case.
- A manager with some responsibility for the investigation – there would be a strong case for attributing the motivation and knowledge of the investigating manager to the employer.
- Someone at or near the top of the management hierarchy, such as the CEO – there may well be an argument for distinguishing the case of a manager in such a senior position from those considered above. However, the Court of Appeal preferred not to express a definitive view on this point.
The Court of Appeal recognised that it may seem unfair that an employer should not be liable for unfair dismissal on these kinds of facts. However, it is an important principle that the statutory right not to be unfairly dismissed depends on there being unfairness on the part of the employer and, therefore, the relevant unfair conduct has to be able to be attributed to the employer. The employer for these purposes is the person the employer has deputed to carry out the decision to dismiss. In this case that person's decision was on the basis of poor performance and not because of the protected disclosures Ms Jhuti had made.
The Court of Appeal went on the hold that, despite the finding that there was no unfair dismissal, Ms Jhuti may still be able to recover compensation for the losses caused by the dismissal. This is on the basis that her dismissal was an inevitable consequence of the line manager's detrimental treatment of her. This would be a matter for the employment tribunal to decide at the remedy hearing.
This decision is helpful for employers, providing them with a potential way out of a finding of automatic unfair dismissal where the employee has made protected disclosures of which the dismissing officer is unaware. However, caution should be exercised where the dismissal decision has been manipulated by the investigating officer or a very senior employee, where tribunals may be more likely to attribute his/her motivation to the employer.
In addition, despite the finding of no automatic unfair dismissal, the Court of Appeal set out the possibility of employees still being able to claim compensation for the dismissal consequent on the detriments found. As such, employers may not be able to avoid financial liability for the dismissal in these circumstances.