Whistleblowing Dismissal Automatically Unfair Despite Decision-Maker being Unaware of Disclosure

An employee had been automatically unfairly dismissed for blowing the whistle, even though the person who made the decision to dismiss was unaware of her disclosures.

Speedread

An employee had been automatically unfairly dismissed for blowing the whistle, even though the person who made the decision to dismiss was unaware of her disclosures. Where a person makes a decision in ignorance of the true facts but they are manipulated by someone else in a managerial position responsible for the employee who is in possession of the true facts, that decision can be attributed to the employer.

Facts

In Jhuti v Royal Mail Group Limited, Ms Jhuti was employed as a media specialist. Soon after joining, she suspected a colleague had breached Royal Mail’s rules and Ofcom requirements. She emailed her manager, Mr Widmer, to inform him of these suspected breaches. He questioned her understanding of the rules and Ofcom requirements and advised her to admit she was mistaken and to send an email retracting her allegation. She was upset but feared she might lose her job and so sent the email.

Mr Widmer then made life difficult for her, requiring her to attend weekly meetings to monitor her progress, setting an ever changing list of unattainable requirements and then putting her on a performance plan. She complained to HR that she was being harassed and bullied as a result of her disclosures. She went on sick leave and raised a grievance. In response, Royal Mail offered her a termination package worth one year’s salary, which she rejected.

Another HR Manager, Ms Vickers, was appointed to review Ms Jhuti’s position with Royal Mail, excluding the grievance she had raised. She knew nothing of the background but did speak to Mr Widmer who told her in the briefest of terms that Ms Jhuti had alleged improper conduct on the part of Royal Mail, but had subsequently retracted her allegations on the basis that she had misunderstood the situation. Ms Vickers accepted this and did not speak to Ms Jhuti as she was unwell and on sick leave. She terminated Ms Jhuti’s employment for poor performance.

Ms Jhuti claimed that her dismissal was automatically unfair on whistleblowing grounds. The employment tribunal rejected her claim. Ms Vickers genuinely believed that Ms Jhuti was a poor performer. Ms Jhuti’s dismissal could only be automatically unfair if Ms Vicker’s decision was motivated by the protected disclosure. That was simply not the case here.

Ms Jhuti appealed

Decision

The Employment Appeal Tribunal upheld her appeal. When determining the reason or principal reason for dismissal, in most cases all that is required is for the tribunal to discern the facts known to the person who made the decision to dismiss. However, where a person makes a decision in ignorance of the true facts but they are manipulated by someone else in a managerial position responsible for the employee who is in possession of the true facts, that decision can be attributed to the employer.

In this case it was relevant that:

• Mr Widmer was Ms Jhuti’s line manager 
• She made the protected disclosures to him and he realised they were serious and significant
• He deliberately subjected her to detrimental treatment from the moment she made the protected disclosures and set up a paper trail which set her to fail 
• He deliberately misled and lied to Ms Vickers about Ms Jhuti’s disclosures.

It was therefore necessary to take Mr Widmer’s reason and motivation into account and on this basis it was inevitable that the employer would be found to have dismissed Ms Jhuti because she had made a protected disclosure.

Implications

Whistleblowing cases can be contrasted with discrimination cases. In discrimination cases, the tribunal must focus on the thought processes and motivation of the decision-maker when considering whether there is a discriminatory reason for dismissal (and must ignore those of the person who provided information to them). The EAT said that that was the wrong approach in cases of automatic unfair dismissal.

It is unclear whether the EAT would have reached the same decision if the manipulation had been done by someone not in a managerial position with responsibility for the employee. 

This case demonstrates the importance of following a fair procedure, even where an employee has less than two years’ service and so cannot bring an ordinary unfair dismissal claim. Had Ms Vickers spoken to Ms Jhuti before deciding to dismiss her and not simply accepted Mr Widmer’s version of events, she would have been aware of the background to the case and may well have come to a different decision.