Under section 103A of the Employment Rights Act 1996 (ERA), it is automatically unfair to dismiss a worker because they made a protected disclosure (blew the whistle). In Royal Mail Group Ltd v Jhuti, the Supreme Court held that if a manager hides the real reason for dismissing someone, the reason for the dismissal is the hidden one rather than the one that was invented.
Shortly after joining Royal Mail, Ms Jhuti told her manager, Mr Widmer, that a colleague was in breach of certain regulatory guidelines. After a long meeting in which Mr Widmer indicated that her employment would be at risk if she pursued her allegations, Ms Jhuti retracted them. Mr Widmer then initiated a series of weekly performance management meetings which culminated in her being placed on a six-week improvement plan. Shortly after raising a grievance about her treatment by Mr Widmer, she went off sick with stress.
Another manager, Ms Vickers, was then appointed to decide if Ms Jhuti should be dismissed because of her alleged poor performance. Although she saw the e-mail that Ms Jhuti had sent to Mr Widmer withdrawing her allegations, she was not shown the original e-mails about the alleged regulatory breach. Ms Vickers decided that Ms Jhuti should be dismissed because she had failed to meet required standards of performance. Ms Jhuti lodged a claim for automatic unfair dismissal on the basis that she had made protected disclosures under section 103A ERA.
Decisions of lower courts
The tribunal held that the issues raised by Ms Jhuti amounted to protected disclosures under section 47B ERA which states that a worker should not be subjected to a “detriment” by their employer, another worker or an agent because they blew the whistle. However, as she had been dismissed because of her poor performance and not because she had made protected disclosures, her claim could not succeed.
The EAT (weekly LELR 484) overturned this decision, holding that if a manager manipulates a decision to dismiss an employee, the manipulator’s reason for dismissal can be attributed to the employer for the purpose of section 103A ERA. Overturning that decision, however, the Court of Appeal (weekly LELR 550) held that, when deciding the reason for dismissal, tribunals only have to take into account “the mental processes” of the person authorised to take the decision to dismiss.
Decision of Supreme Court
Overturning that decision, the Supreme Court held that the issue in this case was whether, in a claim for unfair dismissal, the reason for dismissal could be different to the one given to the employee by the dismissing officer.
Given that section 47B applies not just to the employer but also to “another worker”, it was clear, according to the Supreme Court, that the actions of another worker can be attributed to the employer as though they had made the decision, thereby rendering the employer liable.
That being so, the Court held that “if a person in the hierarchy of responsibility above the employee” decides that the employee should be dismissed but that the real reason for her dismissal should be concealed, “there is no conceptual difficulty about attributing to the employer that person’s state of mind rather than that of the deceived decision-maker.”
The answer to the question, therefore, was that: “if a person in the hierarchy of responsibility above the employee determines that she (or he) should be dismissed for a 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.”