The Supreme Court has today released its decision in the whistleblowing case of Royal Mail Group v Jhuti. The case concerns the unfair dismissal protection for whistleblowers, which provides that a dismissal will be unfair if the reason for it (or the main reason) is that the employee has made a whistleblowing disclosure. The question in the Jhuti case was whether, in identifying the reason for a dismissal, it is only the motivation of the ultimate decision-maker that matters.
The facts were that Ms Jhuti had made a whistleblowing disclosure to her line manager which was not well received by him. He set about creating a false picture of poor performance by Ms Jhuti which ended up in her dismissal, but it was not the line manager who made the decision to dismiss. For the disciplinary process, the company had appointed a different manager, who knew nothing of Ms Jhuti’s whistleblowing disclosure and had no reason to doubt the truthfulness of the poor performance evidence which was found to be sufficient to justify dismissal.
The Court of Appeal had previously decided that, on these facts, the reason for the dismissal could not have been the disclosure made to the line manager as it was only the “mental processes” of the dismissal decision-maker that mattered and that person had based their decision on poor performance. The Supreme Court disagreed and overturned the Court of Appeal’s decision. They said that, when identifying the reason for the dismissal as required by the legislation, it is necessary to identify the “real reason”. Normally, the real reason will be the reason given by the decision-maker but where, as in this case, the real reason has been hidden, the court must “penetrate through the invention”. The real reason for Ms Jhuti’s dismissal was that she had made a whistleblowing disclosure to her line manager.
The facts of the Jhuti case are extreme; cases involving fabricated dismissal grounds will be rare. Employers are, however, often faced with employees who have made whistleblowing disclosures and who are also (for unrelated reasons) the subject of an internal HR process, whether that is a disciplinary, performance or redundancy process. Notwithstanding the decision in Jhuti, the recommended course in such circumstances will normally be to separate out the whistleblowing disclosure, and any associated investigation into it, from any other HR process, with different decision-makers being appointed for each. That will normally reduce the risk of the employee arguing that the outcome of the HR process was motivated by their whistleblowing disclosure.