Crystal balls, mind reading and dismissals

Can an employee be dismissed for making a protected disclosure, even if the person dismissing the employee is unaware a disclosure was made?

A recent decision by the Employment Appeal Tribunal (EAT) in the case of Royal Mail Limited v Jhuti found that an employee can be unfairly dismissed for making a protected disclosure even if the person that dismissed the employee was unaware that a disclosure had been made.   You will probably agree that this appears to be a strange logic; it is certainly a decision that requires us to consider the circumstances of the case further.  

What happened?

Ms Jhuti (J) worked for Royal Mail Group Limited (Royal Mail).  In the course of her employment, she became suspicious that one of her colleagues had breached Royal Mail’s rules and had ignored the requirements of the regulator, Ofcom.  J brought this to the attention of W, her line manager at Royal Mail.  Instead of investigating this allegation, W tried to convince J that she had made a mistake and harassed her until she eventually withdrew her allegation. W set J an “ever changing unattainable list of requirements” that he reviewed with her weekly.  J later complained to Human Resources that she was being bullied and harassed by W as a result of making the disclosure.

V, another manager, reviewed J’s circumstances, but was not made aware that J had previously made a protected disclosure.  V was only aware that J was unhappy at work and that she had previously withdrawn an allegation of improper conduct after believing herself to have been mistaken.  V dismissed J for poor performance on the basis that she was not able to meet the targets set for her.

What did the employment tribunal say?

The Employment Tribunal (ET) considered if J had been automatically unfairly dismissed.  This can occur if the reason or principal reason for an employee’s dismissal was that they had made a protected disclosure.  To find out more about protected disclosures please see our earlier blog “Whistleblowing – what is it and what does it mean for employers?” 

The ET found that J had not been automatically unfairly dismissed as V was not aware of the protected disclosure J had made and therefore she could not have been motivated to dismiss J for this reason, i.e. V genuinely believed that J was a poor performer and dismissed her for that reason. 

How did the Employment Appeal Tribunal differ in their judgement?

On J’s appeal, the EAT reached a different conclusion.  It found that the dismissal was contrived by W.  W had ignored J’s disclosure and proceeded to harass and treat J detrimentally because of her disclosure by deliberately formulating a record of unachieved goals that demonstrated poor performance by J.  W then presented this to V, without mentioning J’s protected disclosure.  The EAT found that if a decision-maker, in this case V, is steered by someone else, in this case W, whose motivation for dismissal is the protected disclosure, the dismissal will be automatically unfair.  

Why is this decision important?

Although each case will turn on its facts, as employers, you should be aware that a decision-maker’s ignorance of certain facts (in this case the background of J’s protected disclosure) will not necessarily protect you from a finding of automatically unfair dismissal if the decision-maker has been manipulated by someone who did know about the disclosures.  In this case important and relevant information had not been given to the other manager (V) so she was not aware of the full picture before she made the decision to dismiss. Interestingly, this case would not have arisen if J’s performance had been managed fairly.  Whilst this was a whistleblowing case it is equally relevant to other situations where a manager dismisses having been kept in the dark about relevant circumstances.

In order to prevent these sorts of situations arising, you should ensure:

  • There is appropriate communication between managers when a new manager takes over a performance management or disciplinary procedure to make a decision.
  • Line managers know what the consequences of not dealing with issues of whistleblowing are and how they can impact on any subsequent employee management procedures.
  • Line managers are properly trained to implement a fair performance management procedure that uses achievable, consistent and measureable targets within reasonable timescales to show improvement.

Noele McClelland is a specialist Employment Lawyer. If you need Employment advice please contact Noele on 01382 229111 or email nmcclelland@thorntons-law.co.uk or alternatively contact a member of the Employment Law team.

Categories: Employment

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