The Supreme Court has ruled that a Royal Mail employee was unfairly dismissed for whistleblowing, not for the alleged poor performance that was put forward as the reason for her dismissal.
The court considered whether, in a claim for automatic unfair dismissal, a manager’s concealed reason for dismissal could be considered by the Employment Tribunal as the real reason for dismissal rather than the reason of the appointed decision-maker.
It concluded that in this circumstance the employer could be held liable for automatic unfair dismissal following the employee’s previous protected disclosures, despite the fact that the dismissing manager was unaware of those disclosures.
Ms Jhuti had made several protected disclosures to her line manager, Mr Widmer, alleging that there had been breaches in company rules and regulatory requirements. He suggested she withdraw her allegations as she had misunderstood the rules, and she did. Mr Widmer then put Ms Jhuti under performance review to “pretend”, in the Supreme Court’s view, that she was performing poorly.
Royal Mail appointed another manager, Ms Vickers, to decide whether Ms Jhuti should be dismissed on account of poor performance. Ms Vickers considered the evidence put forward by Mr Widmer and this resulted in termination of Ms Jhuti’s employment.
Ms Jhuti claimed she had been automatically unfairly dismissed and subjected to detriments as a result of her protected disclosure. The tribunal agreed with Ms Jhuti regarding her detriment claims but dismissed her unfair dismissal claim. It argued that Ms Vickers was not aware of the protected disclosure and it had played no part in her decision to dismiss for poor performance.
The case was appealed to both the Employment Appeal Tribunal and the Court of Appeal with different outcomes reached in both. Finally, the issue went to the Supreme Court, where the key issue to be decided was “the reason (or, if more than one, the principal reason) for the dismissal”. The court was of the view that usually it would only be necessary to consider the reason put forward by the actual decision-maker. However, if a manager decided that an employee should be dismissed for a particular reason but it is concealed behind another reason that is not genuine, and the dismissing manager endorses it in good faith, the reason for dismissal is the concealed one.
Looking forward, this case could be more widely applied to unfair dismissal claims as the phrase “the reason (or, if more than one, the principal reason) for the dismissal” is applicable to both ordinary and automatic unfair dismissal claims. It worth noting the Supreme Court found the facts of this case were extreme and future claims may be rare. In the majority of cases, it is still likely to be the reason of the decision-maker that will be the focus of attention when determining an unfair dismissal claim.