Can a dismissal be automatically unfair, even when the decision maker does not have knowledge of the protected disclosure made by the employee?
In short- yes! The Employment Appeal Tribunal (EAT) has recently considered this question in the case of Royal Mail Group Limited v Jhuti. The decision re-emphasises the importance of investigating concerns raised by employees and conveying all necessary information to the dismissing officer before a decision is reached.
Ms Jhuti was employed by Royal Mail Group Limited. She attended a customer meeting with her colleague and during this meeting she became concerned that her manager was not following Royal Mail protocol and was failing to meet Ofcom standards. She emailed her manager about this. Her manager questioned her knowledge of the protocol and urged her to retract the allegation; Ms Jhuti feared for her job and so retracted it. Following this, Ms Jhuti’s manager robustly performance managed her and treated her differently from her colleagues.
Ms Jhuti raised a grievance and went off sick. Another manager was appointed to review her case and this manager was informed that Ms Jhuti had raised concerns but that she had then accepted she was mistaken and had apologised. Only Ms Jhuti’s email retracting her allegations was sent, and no further information was given about the disclosures. Ms Jhuti was dismissed by the new manager for poor performance.
Ms Jhuti brought a claim for automatic unfair dismissal on the grounds of her protected disclosure. The Employment Tribunal rejected this claim because as a result of being deliberately misled, the new manager was unaware of the protected disclosure and so could not have dismissed because of it. The manager believed she was dismissing for poor performance.
This decision followed a recent line of case law relating to direct discrimination (most notably the CLFIS (UK) v Reynolds case), whereby it has been decided that for a decision to dismiss to be discriminatory, the dismissing manager must have had discriminatory motives (even if the process leading to the dismissal was discriminatory).
Employment Appeal Tribunal
The EAT did not agree with the Employment Tribunal and allowed Ms Jhuti’s appeal. The Employment Tribunal was wrong to apply the direct discrimination case law in respect of knowledge to a whistleblowing dismissal case.
It was decided that even if a decision is made by an individual, who does not have all of the relevant facts (as in this case) or who is being manipulated by someone else who has been motivated by protected disclosures, then the unlawful motives can be attributed to the employer. In other words, the ignorance of the individual decision maker about the employee’s protected disclosures will not be enough for the employer to avoid liability.
This is an unhelpful case for employers and will make it easier for employees to establish a link between a protected disclosure and a dismissal. Awards for automatic unfair dismissal claims on the grounds of a protected disclosure are uncapped.
Where protected disclosures form part of relevant background to a process, it is important to make reference to the disclosure in the management case. Any decision taken will therefore be in the knowledge of that disclosure but ought to be clearly separable from it; this ought to be recorded in the outcome letter.
There is a difficult balance to achieve between making a panel aware of relevant facts and not providing too much information which could unduly influence a decision and place the organisation at risk.