Victimisation and knowledge of protected disclosure

Royal Mail Group v Jhuti

The Employment Appeal Tribunal (EAT) has held in this case that it is automatically unfair to dismiss someone for making a protected disclosure if the person who made the decision to dismiss had incomplete knowledge of the protected disclosure, and was deliberately misled by senior management that the reason for the dismissal was poor performance.

The Claimant raised concerns over regulatory breaches. She was consequently deliberately subject to detriments by her superiors, and dismissed. Management manipulated the facts and led the investigator of the Claimant's grievance and dismissal appeal to believe she was a poor performer, when that was not the case.

The Claimant, who had under two years’ service and no recourse to unfair dismissal, was described as an extremely poor performer and yet was first offered three months’ salary and then one year’s salary to leave before her dismissal.

The EAT held that the decision of a person made in ignorance of the true facts, whose decision was manipulated by someone in a managerial position responsible for the employee who is in the possession of the true facts, will reach the requisite level to amount to victimisation.

In Practice

"It is clear in this case that the employer as a whole behaved very badly and, in other circumstances, ignorance of a protected disclosure may be a defence. It is interesting to note that the employer’s offer to settle the claim became public knowledge as this is normally done on a ‘without prejudice’ basis and therefore inadmissible in legal proceedings," remarks Employment Solicitor Chris Dobbs.

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