Whistleblowing in Employment Law: How important is the knowledge of the employer?

02/12/2019

A ground-breaking Supreme Court decision published last week, Royal Mail Group Ltd v Jhuti, has found that an employee’s dismissal can be rendered automatically unfair, even if the actual decision-maker reaches this outcome in good faith and is unaware of the true reason for the dismissal.

In this case, Ms Jhuti, who worked as a media specialist, made a protected disclosure (also known as whistleblowing), to her line manager about a colleague breaching Ofcom guidance, as reflected in the employer’s own policy. Her line manager responded by questioning Ms Jhuti’s understanding of the rules and subjecting her to an onerous performance management review with unreachable goals. After some time, Ms Jhuti was signed off on sick leave and subsequently dismissed on the basis of poor performance. The senior manager who dismissed her however, was not aware of the real circumstances as a result of being given false, misleading information.

Ms Jhuti made an employment claim for automatic unfair dismissal as a result of making a protected disclosure under s103 of the Employment Rights Act 1996. Additionally, she claimed to be subjected to detriments by acts of her employer carried out because she had made the protected disclosure, contrary to s47B (1). This case was litigated all the way to the Supreme Court, where it was held to be important to correctly identify “the reason (or if more than one, the principle reason) for the dismissal.”  It was found that the reason operating in the mind of the line manager who had concocted the dismissal could be attributed to the employer. This was the case despite the decision maker not being motivated by this reason and dismissing Ms Jhuti as she had genuinely accepted reports about shortcomings in her performance. In the words of Lord Wilson, “it is the court’s duty to penetrate through the invention rather than to allow it also to infect its own determination.”

Therefore, in practice, if a manager or supervisor takes action to cover up or lie about the reason for dismissing an employee, the hidden motive will still be taken into account by an Employment Tribunal when determining future claims. The admissible reason given by a separate decision-maker on behalf of the employer will be irrelevant in circumstances where they are left in the dark about the situation and have relied upon a fabricated cause for the dismissal. However, the Court also emphasized that the facts of this particular case were ‘extreme’. It would be fairly uncommon for somebody to dismiss an employee for a reason which their line manager dishonestly invented.