Knowledge of whistleblowing and fairness of dismissal

Fairness of Dismissal and Knowledge of a Protected Disclosure

The fairness of a dismissal should be based on what the decision-maker knew and not what they should have known.

In Royal Mail Ltd v Jhuti [2017] the Court of Appeal considered whether an employee had been automatically unfairly dismissed on grounds of whistleblowing, in circumstances where the decision-maker was not aware of the protected disclosure she had made.

Facts

Ms Jhuti worked at Royal Mail as an employee from September 2013 to October 2014, at which point she was dismissed. Early on in her employment Ms Jhuti informed her line manager (Mr Widmer) that she suspected one of her colleague’s had breached Royal Mail rules and the requirements of their regulator, Ofcom. Subsequently, Mr Widmer suggested Ms Jhuti had misunderstood and advised her to retract her allegations, which she did, fearing for her job.

Following on from this incident, an ever-changing and unattainable list of requirements were set for Ms Jhuti by Mr Widmer, alongside weekly performance reviews. Ms Jhuti contacted HR twice during this period, in the first instance to complain about how she was being treated and secondly, to complain that she felt she was being harassed and bullied as a result of her protected disclosure. Ms Jhuti subsequently went on sick leave and raised a grievance.

Another manager, Ms Vickers, who knew nothing of the background, was appointed to review Ms Jhuti’s case.  Mr Widmer told Ms Vickers in the briefest of terms that Ms Jhuti had previously made an allegation of improper conduct but subsequently retracted her allegation on the basis that she has misunderstood the situation. Ms Vickers had never met Ms Jhuti and terminated her employment based on poor performance.

Ms Jhuti lodged an appeal, which was rejected. She complained to an employment tribunal that she had been automatically unfairly dismissed as a result of making protected disclosure.

Decision

The EAT held that a decision made by one person in ignorance of the true facts, due to a manipulation by another manager who is responsible for an employee and is in possession of the true facts, can be attributed to their employer.

The Court of Appeal allowed the appeal and held that Ms Jhuti’s dismissal had been fair. What the employer reasonably believed when dismissing the employee had to be determined by reference to what the decision-maker actually knew, not what knowledge they ought to have known.

The Court had regard to the Court of Appeal’s decision in Orr v Milton Keynes Council [2011] when reaching its decision, a case which neither the employment tribunal or the EAT had previously referred to. In Orr, the focus had to be on the state of mind of the person appointed to carry out the employer’s functions i.e. the dismissal. There was no justification for imputing knowledge of the line manager on to the decision-maker; that would be equivalent to treating the dismissing manager as having acquired all the relevant information in the organisation's possession.

Comment

Royal Mail Ltd v Jhuti affirms the principle of certainty set out in Orr as a careful and fully reasoned decision which should be followed. The statutory right not be unfairly dismissed depends on there being unfairness on the part of the employer; unfair or unlawful conduct on the part of individual’s is irrelevant unless it can be properly attributed to the employer.

An appeal is pending.

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Natasha Parikh, Hannah Ford

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