In the case of Royal Mail Group Ltd v Jhuti, the Supreme Court has held that a dismissal is automatically unfair, where decision maker was not aware that the real reason was due to the employee making a protected disclosure.
The employee made a protected disclosure, amounting to whistleblowing, to her manager who as a result subjected her to unattainable performance management and detrimental treatment, leading to the employee going on sick leave due to stress. The employee was then dismissed by a more senior manager, on the basis of her manager’s reports of poor performance, and was unaware of the whistleblowing and how this was handled.
The employee brought claims for automatic unfair dismissal by reason of making a protected disclosure under section 103A of the Employment Rights Act 1996 [ERA] and for detrimental treatment on the grounds she had made a protected disclosure under section 47B(1) ERA.
The tribunal upheld the latter claim but dismissed her claim for automatic unfair dismissal as, due to being unaware, the protected disclosure did not form part of the decision makers reasoning to dismiss. The EAT disagreed with this and overturned the decision. The Court of Appeal agreed with the tribunal and relied on the case of Orr v Milton Keynes Council, which held that the focus must be on the decision maker’s state of mind. The employee thereafter appealed to the Supreme Court.
The Supreme Court held unanimously that ‘if a person in the hierarchy of responsibility above the employee determines that they should be dismissed for a reason but hides it behind an invented reason which the decision-maker adopts, the reason for the dismissal is the hidden reason rather than the invented reason’.
The court considered the intention of parliament when enacting section 103A ERA and held it intended to provide that where the real reason for dismissal was due to making a protected disclosure, the dismissal should automatically be unfair.
It decided that Orr v Milton Keynes Council, did not create a principle in this area and the facts were not comparable with this case. It accepted that it is generally enough to only consider the reason provided by the decision maker but concluded that when that real reason is hidden from the decision maker, the court must look behind the invention.
Section 47B ERA provides workers with the right to not to be subjected to determinant for making a protected disclosure from both their employer and other workers, with the employer being vicariously liable. The employer tried to argue that this is enough protection for whistleblowers and therefore, section 103A ERA should not be stretched to cover reasons for dismissal, other than those of the decision maker. This argument was rejected by the Supreme Court and it was noted that the tribunal had attributed the detrimental treatment to the company, making them directly liable rather than vicariously liable in any event.
- Implications for employers
The facts of this case are extreme and it will be rare for a decision maker to be misled in such a dishonest way. The Supreme Court accepted this and noted that the judgment does not overrule the judgment in Orr v Milton Keynes Council, but attaches a narrow qualification to it. The case does however demonstrate the importance of open communication when deciding to dismiss someone and obtaining accurate information to inform your decision before doing so.