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          Unfair dismissal: Can an employee be automatically unfairly dismissed for whistleblowing even though the decision maker dismissed for a different reason?

          In the case of Royal Mail Limited v Jhuti the Supreme Court has held that a Claimant was automatically unfairly dismissed by reason of "whistleblowing" even though the manager who made the decision to dismiss did not know about the Claimant's protected disclosures.

          Date: 27/11/2019

          Background

          Under section 103A of the Employment Rights Act 1996 ("the Act") an employee shall be automatically unfairly dismissed if the main reason for their dismissal is the fact that they have made a protected disclosure. A protected disclosure is a disclosure of information which in the reasonable belief of the employee making the disclosure, is made in the public interest and shows certain wrongdoing. In addition, under 47B of the Act an employee must not be subjected to a detriment by their employer on the grounds that they have made a protected disclosure.   

          Facts

          The Claimant was recruited as a media specialist for Royal Mail from September 2013 until she was dismissed in October 2014.  

          Shortly after she started her employment the Claimant observed what she believed to be irregularities in breach of Royal Mail's rules and also in breach of OFCOM guidance.  The Claimant reported her concerns to her manager, Mr Widmer, by way of two emails in November 2013.  

          Mr Widmer had a meeting with the Claimant, whereby he questioned her understanding of the rules and advised her to admit that she had made a mistake.  Fearing she might lose her job, the Claimant duly emailed Mr Widmer retracting her allegations and apologised for "having got her wires crossed".  

          Over the following months Mr Widmer was highly critical of the Claimant's performance and set what she claimed to be unachievable targets.  The Claimant believed this treatment was as a direct response to the allegations she had made upon joining Royal Mail.  

          After months of difficulties the Claimant raised a grievance and subsequently went on sick leave.  Royal Mail offered the Claimant a one year termination package, which she rejected.  

          In due course the decision was taken by Royal Mail that the Claimant's employment position needed to be resolved.  This task was given to Ms Vickers (Head of Sales Operations).  Ms Vickers was given a series of emails between the Claimant and Mr Widmer, but was not given the November 2013 emails referring to the prior allegations.  

          In July 2014 Ms Vickers became aware of the allegations previously raised by the Claimant.  Ms Vickers was concerned about the allegations and duly followed them up with Mr Widmer.  Mr Widmer simply explained that the Claimant had raised some allegations but had subsequently withdrawn them on the basis that she had misunderstood the issue.  

          Ms Vickers accepted Mr Widmer's account and subsequently dismissed the Claimant for unsatisfactory performance.  

          Following a rejected appeal, the Claimant brought both a detriment and automatic unfair dismissal claim in the Employment Tribunal by reason of having made protected disclosures.

          Employment Tribunal 

          The Employment Tribunal found that the Claimant was subjected to a detriment under section 47B of the Act, due to the bullying and harassment by Mr Widmer.  However, the Claimant's automatic unfair dismissal claim was rejected as the decision maker (Ms Vickers) was not motivated to dismiss by reason of the protected disclosures. Ms Vickers genuinely believed there to be performance issues.  

          Employment Appeal Tribunal ("EAT")

          The EAT allowed the Claimant's appeal with regard to the automatic unfair dismissal.  The EAT concluded that the decision made by Ms Vickers in ignorance of the true facts, but whose decision was manipulated by someone in a managerial position in possession of the true facts, can be attributed to the employer.  Royal Mail appealed.  

          Court of Appeal 

          The Court of Appeal allowed Royal Mail's appeal and found the decision was fair.   It held that the primary focus should be on what the decision maker actually knew, not what they ought to have known. The Court made reference to the Court of Appeal's decision in Orr v Milton Keynes Council (2011) whereby it was found that a line manager's knowledge could not be imputed on the decision maker, as to do so would be tantamount to assuming the decision maker had the entire knowledge of the employer at their disposal.

          Supreme Court 

          The Supreme Court allowed the Claimant's appeal, finding that she was automatically unfairly dismissed.  When searching for a reason for dismissal under s103A of the Act courts need generally look no further than at the reasons given by the appointed decision maker. However, in the current case the Court held that the reason given by Ms Vickers in good faith, "turns out to have been bogus".  

          The Supreme Court stated: 

          "…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".

          Comment 

          This decision is important for employers, however the facts are extreme.  It will be relatively rare for a decision to dismiss taken in good faith, to be found otherwise as a result of a line manager's dishonest construction of events.

          Employers need to be aware that where a real reason is hidden from the decision-maker behind an invented reason, the court will be prepared to pierce the veil. From a practical point of view, employers should carry out thorough investigations (as much investigation as is reasonable in the circumstances), ensuring the decision-maker is able to come to an informed and unbiased conclusion.     

          Related people

          Charlotte Lloyd-Jones

          • Professional Support Lawyer