Employer cannot hide behind manufactured reason for dismissal adopted by decision-maker

The Supreme Court has ruled that an employer cannot hide behind a manufactured reason for dismissal adopted by a decision-maker in good faith. Where an employee’s manager had hidden the real reason for dismissal (whistleblowing) from the person who took the decision to dismiss, and had invented a different reason (poor performance), whistleblowing was the real reason for dismissal. The dismissal was therefore automatically unfair.    

Miss Jhuti blows the whistle 

Ms Jhuti was employed as a media specialist. Soon after joining Royal Mail she emailed her manager, Mr Widmer, informing him that she suspected a colleague was breaching Ofcom rules. He questioned her understanding of the rules and advised her to admit she was mistaken and to retract her allegation. She was upset but feared she might lose her job and so sent an email retracting her allegation. 

Line manager treats her badly as result

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 went on sick leave. 

Ms Jhuti dismissed for poor performance 

Another HR Manager, Ms Vickers, was appointed to review Ms Jhuti’s position with Royal Mail. She knew nothing of the background. She was provided with numerous emails but not the emails which contained the protected disclosures. She invited Ms Jhuti to attend a meeting. Ms Jhuti did not attend because she was too unwell. However, in one of many emails she sent in response she referred to being sacked by Mr Widmer. Ms Vickers asked Mr Widmer to explain what she meant. He told her Ms Jhuti had alleged improper conduct, but had subsequently retracted her allegations as she had misunderstood the situation. Ms Vickers accepted this and did not speak to Ms Jhuti further. She decided to terminate Ms Jhuti’s employment for poor performance.

Courts disagree over reason for dismissal: performance or whistleblowing?  

Ms Jhuti claimed detrimental treatment and automatic unfair dismissal on whistleblowing grounds. The employment tribunal upheld her detrimental treatment claim but dismissed her unfair dismissal claim. It found that Ms Vickers, who made the decision to dismiss, was unaware Ms Jhuti had blown the whistle. This therefore formed no part of her motivation and so was not the reason for dismissal.  

The EAT overturned the tribunal decision but the Court of Appeal reinstated it. Ms Jhuti appealed to the Supreme Court. 

Supreme Court rules reason was whistleblowing 

The Supreme Court ruled Royal Mail had dismissed Ms Jhuti on whistleblowing grounds. Her dismissal was therefore automatically unfair. 

Parliament clearly intended that where the real reason for dismissal is whistleblowing, the dismissal should be automatically unfair. When searching for the reason for dismissal, it is generally necessary to look only at the reason given by the decision-maker. However, where the real reason is hidden from the decision-maker behind an invented reason, “it is the court’s duty to penetrate through the invention rather than to allow it also to infect its own determination”. The Supreme Court ruled that if a person in the hierarchy of responsibility above the employee decides he or she should be dismissed for one reason (in this case whistleblowing), but hides that reason behind an invented reason which the decision-maker adopts (in this case poor performance), the reason for dismissal is the hidden reason. Royal Mail had therefore dismissed Ms Jhuti for whistleblowing.  

Implications

As the Supreme Court observed, instances of decisions taken in good faith, not just for a wrong reason, but for a reason which an employee’s line manager has dishonestly constructed, will not be common. However, where such a situation occurs, employers will not be able to avoid liability by arguing that the invented reason was the reason for dismissal.  Employment tribunals will be able to look behind the decision-maker’s reason for dismissal to identify the real reason.