It’s what you know, not who you know: fairness of dismissal based on mind of decision-maker (1)

Under the UK legislation, a worker must not be treated detrimentally by their employer because they’ve blown the whistle, i.e. made a protected disclosure. If the employee is dismissed because they’ve made a protected disclosure, their dismissal will be automatically unfair.

The case of Royal Mail v Jhuti looked at the fairness of a dismissal where the employee had made protected disclosures, but the dismissing manager was not aware of those protected disclosures when deciding to dismiss.

Ms Jhuti commenced employment with Royal Mail Group Limited in September 2013. Shortly after she joined, she attended a customer meeting along with another Royal Mail employee, Mr Mann. As a result of the content of that meeting, she had concerns that Mr Mann had breached both Royal Mail’s internal policies and also the requirements of Ofcom, its regulator.

Ms Jhuti emailed her concerns to her line manager, Mr Widmer, who arranged a meeting with her. Mr Widmer questioned Ms Jhuti and suggested that she was mistaken, asking her to retract her allegations. Ms Jhuti did withdraw her allegation out of concern she might otherwise lose her job.

Following Ms Jhuti raising her concerns to Mr Widmer, she became subjected to weekly monitoring of her progress. In February 2014, Mr Widmer put a performance plan in place and asked Ms Jhuti to disclose a list of her main clients from her previous employer. Ms Jhuti made several complaints to HR about her treatment by Mr Widmer and stated that she was being harassed and bullied as a result of making protected disclosures. There was no investigation of these complaints, so she then raised a grievance and went on sick leave. Rather than investigate her grievance, Royal Mail offered her a settlement package, which Ms Jhuti rejected.

Ms Vickers was appointed to review Ms Jhuti’s performance. Ms Vickers did not receive any information concerning Ms Jhuti’s disclosures; however, she became aware that Ms Jhuti was upset about something. On discussing this with Mr Widmer, Ms Vickers became aware that Ms Jhuti had alleged improper conduct but had retracted those allegations. Ms Vickers was given no more information than that and was unable to meet with Ms Jhuti as she was unwell. On review, Ms Vickers decided to terminate Ms Jhuti’s employment on the grounds of her poor performance.

The tribunal found that Mr Widmer’s behaviour of subjecting Ms Jhuti to performance management, and Royal Mail’s offer of a settlement package, were detriments for Ms Jhuti having made protected disclosures.

However, Ms Jhuti’s claim for automatic unfair dismissal failed as Ms Vickers, who decided to dismiss, was not aware of the protected disclosures and genuinely believed that Ms Jhuti was a poor performer.

On appeal to the EAT, it was held that a decision to dismiss taken by one manager, under manipulation by another manager who did know about the protected disclosures, could be unfair. The EAT held that Ms Jhuti had therefore been automatically unfairly dismissed.

Royal Mail appealed to the Court of Appeal. Overturning the finding of the EAT, the Court of Appeal highlighted that the right not to be unfairly dismissed depends on there being unfairness on the part of the employer. The reasonable belief of the employer should be based on what the person deciding to dismiss actually knew, not what knowledge ought to be attributed to them. Where there has been unfair or even unlawful conduct on the part of colleagues or managers is not relevant unless it can be properly attributed to the employer.

This case is an important one, as it affirms that the right not to be unfairly dismissed is based upon the reasonable belief of the employer and not subject to the vagaries of which manager knew what at any given time. However, the Court of Appeal’s decision also left open that a decision taken by one manager to dismiss could be unfair if it is manipulated by another manager with some responsibility for the investigation, or by someone in a senior role in the organisation.

For employers, the key take-home point from this case is to ensure that in investigating an employee’s grievance or in deciding to dismiss, the decision-maker alone should decide on the outcome. It is also worth remembering that where a decision-maker does need support with an investigation or disciplinary process, internal communications between the decision-maker and HR or other managers will not be protected and will be disclosable; and therefore managers should be discouraged from making comments in writing before matters have concluded. Legal advice will generally attract legal privilege.

For more information, please get in touch with your usual contact in our Employment Team or speak to Rebecca Reid. You can find out more about our employment work on our website.

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