Supreme Court holds that whistle-blower was unfairly dismissed

Background

Ms Jhuti was employed by Royal Mail in September 2013 as a media specialist. In November 2013, during her initial 6 month trial period,  she raised concerns in emails to her manager that a colleague was not complying with Ofcom’s guidance and with company policy in relation to offers of incentives and offers to repeat customers.

A few days after making the disclosure, the Claimant had a meeting with the manager, who asked the Claimant at length about her understanding of the guidance and policies. The manager commented that the Claimant’s understanding was questionable and she was led to understand that were she to press the allegations further, her employment would be at risk. The Claimant therefore apologised and withdrew the allegations.

Thereafter, the Claimant’s manager set up intensive weekly meetings with her, which were not held for other members of the team. The Claimant was told that these were necessary in order to monitor her performance. The process resulted in the Claimant being told repeatedly that her progress was disappointing.

In March 2014, the Claimant was signed off work with work-related stress, anxiety and depression.

In April 2014, another manager was appointed to decide whether the Claimant should be dismissed. Due to her ongoing ill health, the Claimant was unable to present her case to in meetings or otherwise. The manager therefore had no reason to doubt the truthfulness of the material indicating the Claimant’s inadequate performance, and the Claimant was dismissed for that reason.

Employment Tribunal

The Claimant brought a claim for unfair dismissal to the Employment Tribunal (ET) that she was automatically unfairly dismissed and subjected to other detriments as a result of her protected disclosure.

The ET found in favour of the Claimant regarding her detriment claim, but rejected her unfair dismissal claim on the basis that the reason, or at least the principal reason, for her dismissal had not been her making of the protected disclosures. The manager who had dismissed her was not aware of the Claimant’s protected disclosure and genuinely believed that the Claimant’s performance had been inadequate.

Employment Appeal Tribunal

The Claimant appealed to the Employment Appeal Tribunal (EAT). In May 2016, the EAT allowed her appeal, holding that where someone in a managerial position, responsible for the employee, had manipulated the decision to dismiss them which had been made in ignorance of the manipulation, the manipulator’s reason for dismissal could be attributed to the employer for the purpose of section 103A of the Employment Rights Act 1996. Therefore, the reason for her dismissal was her making of the protected disclosures and it did not matter that the person making the decision to dismiss was unaware of the protected disclosure.

Court of Appeal

The employer appealed to the Court of Appeal. In October 2017, the Court of Appeal allowed the company’s appeal on the basis that a tribunal required to determine “the reason (or, if more than one, the principal reason) for the dismissal” under section 103A of the Act was “obliged to consider only the mental processes of the person or persons who was or were authorised to, and did, take the decision to dismiss”.

Supreme Court

The Claimant then appealed to the Supreme Court, who handed down judgement in November 2019.

The key issue for the Court to consider was “the reason (or, if more than one, the principal reason) for the dismissal”. In his judgment, Justice Lord Wilson stated that the “courts need generally look no further than at the reasons given by the appointed decision-maker”, but said that because in this case the real reason for the dismissal was hidden, it was “the court’s duty to penetrate through the invention rather than to allow it also to infect its own determination”. In interpreting the wording in the Employment Rights Act 1996, he identified that parliament’s intention was to provide that, where the real reason for dismissal was whistleblowing, a finding of automatic unfair dismissal should follow.

The Court therefore took view that usually it would only be necessary to consider the reason put forward by the actual decision-maker. However, where that reason was obscured by a fictitious one, the tribunal/court had to consider all the background circumstances rather than allow the dishonest reason to taint its decision.

The Court concluded that if a manager decided to dismiss an employee for a particular reason (in this case a protected disclosure) but used another reason that was not genuine to justify the dismissal (in this case the Claimant’s alleged poor performance), the real reason for the dismissal is the concealed reason. The dismissal was therefore unfair, even though the person taking the decision to dismiss was unaware that whistleblowing was the reason for the dismissal.

What does this decision mean for employers?

The effect of this decision may extend the protection for whistle-blowers, because employers will not be able to rely on a particular manager’s lack of knowledge as a defence, even if they are acting innocently in dismissing an employee.

However, the Supreme Court noted that the facts of this case were extreme and future claims involving a more senior manager acting in such a manner are likely to be rare. As a result, in the majority of cases, the tribunals and courts are still likely to focus on the reason of the decision-maker when determining unfair dismissal claims.

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.