The EAT has recently held that an employee was automatically unfairly dismissed for making protected disclosures even though the person who dismissed her was unaware of those disclosures.  

Background 

Ms Jhuti was employed by Royal Mail as a media specialist.  Soon after she joined, she accompanied a colleague to a meeting with one of Royal Mail's customers. During the meeting, Ms Jhuti suspected that her colleague had breached Royal Mail's rules and also the requirements of its regulator, Ofcom. She sent e-mails to her line manager, Mr Widmer, telling him that she suspected there had been these breaches and then met with him. However, his reaction was to question her understanding of the rules and requirements which she claimed had been breached. Ms Jhuti felt pressured into sending an e-mail retracting her allegation.  

Mr Widmer asked Ms Jhuti to attend weekly meetings to monitor her progress and set her an "ever changing unattainable list of requirements". In February 2014, Mr Widmer set a performance plan for Ms Jhuti which required her to compile a list of her key clients from her previous employment. Believing that she would be in breach of the law if she complied, she contacted HR to complain about how she was being treated. Nothing was done, and after more meetings with Mr Widmer, Ms Jhuti contacted HR again to complain that she was being harassed and bullied as a result of her disclosures.  

Ms Jhuti then went on sick leave and raised a grievance. Royal Mail responded by offering her a termination package worth one year's salary, which she rejected. 

Another manager, Ms Vickers, who knew nothing of the background history, was appointed to review Ms Jhuti's position with the company, excluding her grievance. Ms Vickers was not given any of Ms Jhuti's e-mails containing the disclosures. Ms Vickers discussed the issue with Mr Widmer, and he told her in the briefest terms that Ms Jhuti had alleged that there was improper conduct at Royal Mail, but that she had subsequently retracted her allegations on the basis that she had misunderstood the situation. Ms Vickers accepted what Mr Widmer said and did not see Ms Jhuti as she was unwell. Ms Vickers terminated Ms Jhuti's employment for poor performance.  

Ms Jhuti lodged an appeal, which was rejected. She complained to an employment tribunal that she had been automatically unfairly dismissed as a result of making protected disclosures.

The Employment Tribunal

The tribunal found that Ms Jhuti had made a protected disclosure for whistleblowing purposes and that, as a result of her disclosure, she been subjected to detriments including bullying and harassment.

However, the ET concluded that, because Ms Vickers genuinely believed Ms Jhuti was a poor performer and was not motivated by the protected disclosures when deciding to dismiss, the complaint of automatic unfair dismissal could not be upheld.

Ms Jhuti appealed.

The Employment Appeal Tribunal

The EAT allowed the appeal. 

The EAT acknowledged that, in the vast majority of cases, it is only necessary to take into account the facts known to the person who made the decision to dismiss. However, where that decision-maker is being manipulated, the EAT said that the manipulator's motives can also be attributed to the employer.

The EAT allowed the appeal. It was satisfied that Ms Vickers' decision, made in ignorance of the true facts, had been manipulated by Mr Widmer who was in possession of the true facts. Ms Vickers' decision could therefore 'be attributed to the employer of both of them'.

Based on this, Royal Mail had dismissed Ms Jhuti because she made protected disclosures and this was automatically unfair.

Implications

Although this is not a great decision for employers, it does provide some clarity on dismissals under the whistleblowing regime and on the distinction between that and the discrimination regime. In discrimination cases, the tribunal must focus on the thought processes and motivation of the ‘decision-maker’ when considering whether there is a discriminatory reason for dismissal. The EAT said that that was the wrong approach in cases of automatic unfair dismissal.  

It is not clear whether the EAT would have reached the same decision if the manipulation had been done by someone not in a managerial position with responsibility for the employee (or worker).  

This case demonstrates the importance of following a fair procedure, even where an employee has less than two years’ service and so cannot bring a claim of ordinary unfair dismissal. The person conducting the investigation should ensure that they have gathered all relevant information, particularly where they are unaware of the background to the matter. 

Royal Mail Group Limited v Jhuti