Knowledge of protected disclosure

Is it a whistleblowing dismissal if the person who made the decision to dismiss was ignorant of the protected disclosure, and was deliberately misled by the employee's line manager to believe the reason was poor performance?

No, held the Court of Appeal in its judgment in Royal Mail Ltd v Jhuti.

Ms Jhuti was an employee at Royal Mail who made a protected disclosure to her line manager. During a dismissal process, the line manager, motivated by the protected disclosure, deliberately misled the investigating manager so that she dismissed Ms Jhuti for poor performance.

Reason and motivation

The Employment Appeal Tribunal held that both the reason and motivation of the decision maker and the line manager had to be taken into account, and could be attributed to their employer.

In reversing the Employment Appeal Tribunal's decision, the Court of Appeal held that in determining the "reason for the dismissal", the tribunal is only obliged to consider the mental processes of the person(s) authorised. Ms Jhuti’s lawyers raised some doubt about whether, in cases of manipulation, the position would be different if the CEO deliberately manipulated the dismissal decision.

In principle, Ms Jhuti is not precluded from recovering compensation for dismissal, but this is for the employment tribunal to decide.

Unfairness by the employer

Kate Fretten, Partner in Frettens' Employment Team, reminds employers “Unfair dismissal cases require unfairness by the employer. Unfair conduct by individual managers or colleagues is immaterial unless it can properly be attributed to the employer.”

At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and Kate or Paul will be happy to discuss it with you.