Labour & European Law Review Weekly Issue 484 24 August 2016
Under section 103A of the Employment Rights Act 1996 (ERA), it is automatically unfair to dismiss a worker because they made a protected disclosure. In Royal Mail Group Ltd v Jhuti, the Employment Appeal Tribunal (EAT) held that it is still unfair to dismiss someone even if the dismissing officer was not aware of the full facts.
Ms Jhuti, an experienced media specialist, joined the Royal Mail’s sales division in September 2013. In early October she started to have concerns that a colleague had committed a regulatory breach. Ms Jhuti raised the issue with her manager, Mr Widmer in November, but rather than dealing with the potential breach, he gave her a “dressing down” and questioned her competence. From then on, he set her an ever changing unattainable list of requirements which she took to be an attempt to drive her out of her job.
She complained to HR in February 2014 about her manager and her concerns about the breach, but their response was that Mr Widmer was a respected member of staff and suggested that Royal Mail might not be the right company for her. In March 2014, Ms Jhuti was offered three months’ pay to leave, which she refused. This was later increased to a year. In July she was given three months’ notice of dismissal on the basis that she had not met the standards required of a media specialist. Ms Jhuti’s formal grievance and appeal against dismissal were turned down.
Ms Jhuti made a claim for automatically unfair dismissal on the basis that she had been dismissed for making protected disclosures under section 103A ERA.
The tribunal found that individually and together the issues raised by Ms Jhuti amounted to protected disclosures under section 47B ERA and that she was subject to a number of detriments, including bullying and harassment and being “set up to fail”.
Despite those findings, however, it concluded that Ms Jhuti had been dismissed because HR genuinely believed that she was a poor performer (as the result of the “tainted” evidence from the manager) and not because she had made protected disclosures. As the decision in the case of CLFIS (UK) v Reynolds requires the dismissing officer to be motivated by the protected disclosures, it followed that Ms Jhuti could not rely on the automatic unfair dismissal provisions of the ERA.
The EAT, however, held that the tribunal judge had misunderstood the decision in CLFIS (UK) v Reynolds, as it was not just the mind of the HR manager that needed to be examined, but also the reason and motivation of Mr Widmer. Once that was taken into account, it was inevitable that dismissal would follow, given that Ms Jhuti had made protected disclosures principally to him.
As a matter of law, the EAT held that someone who makes a decision “in ignorance of the true facts” which have been manipulated by someone in a managerial position responsible for an employee and who is aware of the true facts, “can be attributed to the employer of both of them”.
The EAT decision makes it more difficult for employers to avoid a finding of automatic unfair dismissal where an employee is withholding crucial information. Ms Jhuti had complained to HR several times so they were, or should have been, aware of what was going on. If there had been a more thorough investigation and had the dismissing officer liaised with HR they might have ascertained the true facts.