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29 January 2020
In a decision with implications for unfair dismissal law generally, the Supreme Court has ruled that it is not always necessary for a dismissing manager to know about whistleblowing disclosures made by an employee in order for that dismissal to be automatically unfair.
Employees who blow the whistle have special protection from being dismissed or otherwise treated badly by their employer for doing so. This applies where an employee has made a 'protected disclosure' – that is, a disclosure of information on a specific subject which is in the public interest.
It is automatically unfair to dismiss an employee because they have made a protected disclosure. The dismissal will be unfair if that is the employer's main reason for the decision, even if other factors are also involved. The question in this case was whether it is necessary for the person who makes the actual decision to dismiss an employee to know about the protected disclosure.
Ms Jhuti, who was employed by Royal Mail, sent two emails to her manager complaining that colleagues had breached rules on customer discounts.(1) The manager put Jhuti under pressure to retract her allegations and she sent an email saying "I am so sorry I got my wires crossed" because she was concerned for her job. The manager subsequently set Jhuti inappropriate targets and requirements for improvement and constantly criticised her performance. Jhuti complained to HR about how she was being treated, went on sick leave and raised a grievance.
Ms Vickers was appointed to review the case but did not see the emails in which Jhuti had made her disclosures. She also did not meet with Jhuti, as she was still unwell, but Jhuti sent her a lengthy series of emails in which she referred to her previous allegations. Vickers then spoke to the manager, who told her that Jhuti had made allegations of improper conduct but had retracted them on the basis that there had been a misunderstanding. Vickers decided to dismiss Jhuti for unsatisfactory performance. An appeal against this decision was rejected.
Jhuti made a claim to the Employment Tribunal that she had been automatically unfairly dismissed for making protected disclosures.
The Employment Tribunal found that Jhuti had made protected disclosures, but that she had not been automatically unfairly dismissed. This was because Vickers had not seen the protected disclosures and had genuinely believed that Jhuti was a poor performer. An automatic unfair dismissal would exist only if Vickers herself had been motivated by the protected disclosures to dismiss Jhuti.
The Employment Appeal Tribunal allowed Jhuti's appeal, deciding that this could be an unfair dismissal because Vickers had been manipulated by another manager.
The Court of Appeal disagreed with the Employment Appeal Tribunal, holding that the dismissal had been fair. According to the court, the assessment of what the employer had reasonably believed had to be based on the mental processes of the person who had made the actual decision to dismiss the employee.
The Supreme Court allowed Jhuti's appeal, ruling that the dismissal was automatically unfair because the real reason for her dismissal was that she had made protected disclosures. Although the dismissing manager had acted in good faith, she had been manipulated by another manager who wanted to get rid of Jhuti because of her whistleblowing. The court's main points were as follows:
The Supreme Court noted in its judgment that the facts of the case were extreme, involving a manager who had deliberately created a false picture of inadequate performance which the dismissing manager had then believed. The court further noted that examples of decisions to dismiss employees taken in good faith but for a reason which the employee's line manager had dishonestly constructed are uncommon.
Thus, similar whistleblowing claims are unlikely to arise often, but the Supreme Court's decision nonetheless has significant wider implications.
The same reasoning would apply in all types of unfair dismissal claim. The Supreme Court makes clear that this question of identifying the real reason for dismissal does not relate solely to automatic unfair dismissal for whistleblowing.
In a standard unfair dismissal claim, the employer must show a potentially fair reason for dismissal. It is possible that the evidence presented to a decision maker could be manipulated by another manager in order to engineer an employee's dismissal, particularly in cases of poor performance or misconduct. The Supreme Court's ruling confirms that this can still be an unfair dismissal for an impermissible hidden reason, even if the dismissing manager genuinely believes that there has been poor performance or misconduct.
The potential for this argument to be raised in dismissal situations makes it particularly important for employers to conduct a thorough investigation into performance or disciplinary allegations before making a final decision. Although it may be uncommon for managers to manipulate evidence in this way, the possibility is likely to now be scrutinised more closely in unfair dismissal claims. The decision maker in this case was unable to meet with Jhuti, and possibly failed to pay sufficient attention to a confused and lengthy series of emails from her which referred to the protected disclosures. Decision-making managers should not simply accept all information from other managers at face value.
Whistleblowing detriment claims
Two main types of claim can be made in relation to protected disclosures by an employee – automatic unfair dismissal and detriment. A detriment claim gives an employee different remedies, including for injury to feelings, and importantly can be brought against individual managers as well as employers. An employer can also be vicariously liable for detrimental treatment by managers, unless it took all reasonably practicable steps to prevent it. In addition, it is easier for an employee to establish a detriment claim – the test is whether the individual has been subject to a detriment on the ground that they made a protected disclosure, which requires a material influence on their treatment. This is wider than the unfair dismissal test, which requires a protected disclosure to be the reason or principal reason for dismissal.
Until quite recently, it was thought that detriment claims could be brought about only action short of, or prior to, dismissal. However, in Timis v Osipov the Court of Appeal ruled that a detriment claim could be brought against individual managers who had dismissed an employee. The practical outcome of Osipov is that:
Jhuti did not try to bring a detriment claim about the dismissal itself directly against her manager. In another case, there may be good reasons for doing so, including the lower hurdle of whether the detriment was materially influenced by whistleblowing and the scope for obtaining damages for injury to feelings. It is also possible that this type of claim could be made against an innocent decision maker as well. A dismissing manager cannot be liable for unfair dismissal but could be sued for detriment arising from dismissal. While it is unclear whether a manager who genuinely knew nothing about a protected disclosure could still be liable if they were manipulated into a dismissal decision by others, there must at least be scope for personal liability if there has not been a thorough investigation.
Although the Supreme Court made some comments about detriment claims in its decision, it did not directly say whether it agreed with the Court of Appeal's decision in Osipov. This unhelpfully leaves the position open. However, for the time being, parties should assume that Osipov-type detriment claims about dismissal can still be brought against both individuals and employers.
For further information on this topic please contact Colin Leckey at Lewis Silkin by telephone (+44 20 7074 8000) or email (firstname.lastname@example.org). The Lewis Silkin website can be accessed at www.lewissilkin.com.
(1) Royal Mail Ltd v Jhuti – judgment available here.
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