Employment Law Speed Read – 30/10/17
30th October, 2017
This week's Speed Read looks at a whistleblowing case that clarifies the law in relation to employers' knowledge in unfair dismissal claims.
Royal Mail Ltd v Jhuti
In the recent whistleblowing case of Royal Mail Ltd v Jhuti the Court of Appeal held that there could be no unfair dismissal where the individual who made the decision to dismiss, was not motivated by the protected disclosure.
Ms Jhuti (J) was employed by Royal Mail (RM) as a media specialist and came to believe that her colleagues were offering incentives in breach of OFCOM guidance. J reported these concerns to her line manager in two emails.
Subsequently, J’s line manager put her under great pressure to withdraw her allegations, and threated that if she did not, her employment would be terminated. He then told J to send him a further email, confirming that she was withdrawing her allegations and stating that she had misunderstood the rules governing incentives. Concerned for her job, J complied with this request.
After the incident, J’s relationship with her line manager deteriorated. He was critical of her performance and imposed on her unattainable performance goals. J raised a grievance in relation to his behaviour and went on sick leave for work-related stress. She did not return to work.
RM allocated its Head of Sales Operations (V), who had no previous involvement with J, to review her position at the organisation. V was given correspondence between J and her line manager, but not the emails about the incentives. J was subsequently invited to a meeting where the termination of her employment was to be considered. J could not attend because she was unwell and sent a series of incoherent emails to V that mentioned her original allegations.
Concerned, V spoke to J’s line manager, who said he had dealt with J’s concerns which were based on her misunderstanding of the incentive rules. He also provided V with J’s email withdrawing her allegations. V accepted his account.
V later notified J in writing that she was giving her three months’ notice of dismissal. The letter set out V’s reasons for the dismissal which were based solely on J’s unsatisfactory performance.
J brought proceedings in the Employment Tribunal for unlawful detriment and for automatic unfair dismissal as a result of her making protected disclosures. The ET found that J had been subject to unfair detriment. However, it found that J had not been unfairly dismissed because although her line manager had treated her as having a poor performance record because of her protective disclosure, V’s decision to dismiss her was taken in good faith on what she understood to be genuine poor performance. V had not taken into account the protected disclosures when making her decision.
J appealed to the EAT, which held that both the reason and motivation of the decision maker and the line manager had to be taken into account, and could be attributed to their employer.
Court of Appeal
RM appealed, arguing that for the purposes of determining the ‘reason for dismissal’, the Tribunal was obliged to consider only the mental processes of the person who was authorised to, and did, take the decision to dismiss.
The Court of Appeal (CA) agreed. In acknowledging that it may appear wrong for RM not to be liable for unfair dismissal, the CA stated: “the statutory right not to be unfairly dismissed depends on there being unfairness on the part of the employer; and unfair or even unlawful conduct on the part of individual colleagues or managers is immaterial unless it can properly be attributed to the employer”.
It was held that the line manager’s motivation to dismiss J because of her protected disclosure could not be attributed to RM because it was not shared by V, the person who was charged with making the decision to dismiss.
The CA’s reversal of the EAT’s decision is good news for employers, as they will not be liable for the unfair motivation of employees who are not tasked with investigating or making decisions to dismiss.
Nonetheless, the CA stated that J may still have a remedy under her detriment claim to recover the losses which flowed from her dismissal. Therefore, when dismissing employees, employers should be careful that any evidence they rely on has not been tainted by other members of staff.
If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.