Can the hidden reason for an employee's dismissal be considered the main reason?

Royal Mail Group v Jhuti [2019] UKSC 55

Why care?

A worker must not be subjected to any detriment by their employer on the grounds that they have made a protected disclosure and if the main reason for an employee's dismissal is the fact that they have made a protected disclosure, that dismissal will be automatically unfair. Previous cases have held that it is for an employer to prove that it had a potentially fair reason for dismissing an employee and it is only the facts known to the decision-maker that are relevant in determining whether the dismissal was fair.

The case

Ms Jhuti was employed by Royal Mail Group Limited from September 2013 until October 2014 when she was dismissed. Soon after joining she emailed her manager Mr Widmer informing him of some suspected breaches by another employee of Royal Mail's rules and the requirements of its regulator, Ofcom and expressing her concern. His reaction was to question her understanding of the rules, that she was in her trial period and questioned her performance. At his suggestion, and thinking she may otherwise lose her job, Ms Jhuti sent him an email retracting the allegation and admitting that she had made a mistake.

Mr Widmer continued to question her performance. She contacted HR again to complain that she was being harassed and bullied but nothing was done so she requested that her line manager be changed. Her new line manager extended her trial period by one month and said that Ms Jhuti was not making the progress he expected. Ms Jhuti went on sick leave, raised a grievance and was then offered a termination package worth one year's salary which she rejected.

While on sick leave, another manager (Ms Vickers) who knew nothing of the background was appointed to consider terminating Ms Jhuti's employment due to her performance. Although provided with that information, Ms Vickers was not given any of Ms Jhuti's emails containing the disclosures, invited Ms Jhuti to a meeting to which Ms Jhuti responded with emails in which she alleged that she was being "sacked for telling the truth". Ms Vickers was unaware of the issues and Mr Widner only informed her briefly that Ms Jhuti had made allegations of improper conduct at Royal Mail, but that he had explained the situation and Ms Jhuti accepted that she had misunderstood what had occurred.

Ms Jhuti was too unwell to attend a meeting with Ms Vickers so Ms Vickers wrote to Ms Jhuti that her employment would be terminated on notice as she had failed to maintain the standard required by Mr Widmer's performance improvement plan.

Ms Jhuti's appeal was unsuccessful and she brought a claim in the employment tribunal that she had been automatically unfairly dismissed as a result of making protected disclosures.

The employment tribunal found that Ms Jhuti had made protected disclosures and been subjected to detriments, by the bullying and harassment by Mr Widmer, and the offer to leave Royal Mail in return for 12 months salary. This did not amount to an automatically unfair dismissal because Ms Vickers (as the employer) had not been provided with the emails which formed the basis of Ms Jhuti's protected disclosures and genuinely believed Ms Jhuti to be a poor performer. There were no grounds for saying that her decision was based on someone else's motivation.

On appeal by Ms Jhuti, the EAT took the opposite view, that a decision made by Ms Vickers in ignorance of the true facts which had been manipulated by another manager responsible for an employee, who was in possession of the true facts, could be attributed to their employer.

Royal Mail appealed to the Court of Appeal which reversed the EAT's decision finding that the dismissal was fair. Whether or not a dismissal is fair should be judged by what the decision maker (Ms Vickers) knew, not what they should have known. Ms Jhuti appealed to the Supreme Court.

The Supreme Court allowed the appeal. It held that if a line manager above an employee decides that they should be dismissed for a reason but hides it behind a fictitious reason which the decision-maker then adopts, that hidden reason is the reason for the dismissal, not the invented reason.

What to take away

Ms Jhuti's manager Mr Widmer misled Ms Vickers, the dismissing manager, over the protected disclosures. He engineered Ms Jhuti's dismissal and took all the steps he could to bring this about. The Supreme Court decided that just because Mr Widmer did not take the ultimate decision to dismiss did not result in the employer avoiding liability for unfair dismissal on the basis of a technical argument.

The Supreme Court looked at what was meant by unfair dismissal in the context of whistleblowing, but the same wording applies to ordinary unfair dismissal cases too. Athough this could widen the application of this judgment, in reality it will be pretty rare for a manager to manipulate the reason for a dismissal and hide the real reason from a dismissing manager. Even if this was done, it would be likely that the facts to later come to light, either through investigation, or from an employee being disciplined.

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