28 November, 2019
The Supreme Court has upheld the decision of the Employment Appeal Tribunal In Royal Mail Group Ltd v Jhuti confirming that where there is a hidden reason for a dismissal it will be held to be the reason for the dismissal irrespective of the fact that the decision maker had an alternative admissible reason in mind. Accordingly, the dismissal will be automatically unfair even though the decision maker has acted in good faith.
Jhuti was an employee of Royal Mail. She made a protected disclosure ("whistleblowing") to her line manager regarding concerns over a colleague she thought was breaching Royal Mail rules and regulatory requirements. The manager questioned her understanding of the rules and regulations, advised Jhuti to admit she had made a mistake and asked her to send an email retracting her allegation. Following this, the manager allegedly subjected Jhuti to an onerous performance management programme, setting unreachable goals.
Jhuti subsequently went off on sick leave, and was eventually dismissed for poor performance by a different manager who was unaware of the history of the protected disclosure, but relied on the original manager's assurance that Jhuti had accepted the protected discourse concerns had been based on a misunderstanding.
Jhuti brought a claim for unfair dismissal based on the protected disclosure pursuant to s.103A of the Employment Rights Act 1996. The Tribunal dismissed the claim on the basis that the manager who dismissed her was unaware of the protected disclosure and had been given incomplete and misleading information by her line manager. As the reason did not form part of the dismissing manager's motivation, it could not be the reason for the dismissal.
The Employment Appeal Tribunal, overturned the Tribunal's decision on the basis that there was no reason why the reason held by the manipulator of an ignorant and innocent decision-maker could not be attributed to the employer any more than the unfairness of his or her motivation.
However, this decision was overturned by the Court of Appeal who relied on the judgment in Orr v Milton Keynes Council. That concerned a case of 'ordinary' unfair dismissal under S.98(4) ERA) where the Court of Appeal held that the focus must be on the knowledge, or state of mind, of the person who actually took the decision to dismiss.
On appeal to the Supreme Court, the Court held that on a review of s.103A, the Parliamentary intention was that where the real reason for dismissal was whistleblowing, the automatic consequence should be a finding of unfair dismissal. The Court held that Orr was not comparable to the present case. In summary, when searching for the reason for a dismissal, it is generally necessary to look only at the reason given by the decision-maker. However, where the real reason is hidden from the decision-maker behind a fictitious reason, it is the court's duty to penetrate through the invention rather than to allow it also to infect its own determination. The Court therefore concluded that if a person in the hierarchy of responsibility above the employee determines that he or she should be dismissed for one reason, but hides it behind an invented reason which the decision-maker adopts, the reason for the dismissal is the hidden reason rather than the invented reason.
For more information contact Rosalind Leahy in our Employment & HR department via email or phone on 01772 220185. Alternatively send any question through to Forbes Solicitors via our online Contact Form.