Whistleblowing: good faith decision to dismiss automatically unfair

Workers are protected by statute from mistreatment either by their employer or another worker because they have made a protected disclosure (more commonly known as whistleblowing). A worker is also protected from being dismissed because they made a protected disclosure. Accordingly, if a worker is dismissed and the principal reason for that dismissal is that they made a protected disclosure, then the dismissal will be automatically unfair. Therefore, as in all cases of unfair dismissal, identifying the reason for dismissal is of central importance to any whistleblowing dismissal claim.

In a recent Supreme Court case, Royal Mail Group Ltd v Jhuti [2019] UKSC 55, the Court noted that in most circumstances an Employment Tribunal will not need to look beyond the reason given by the ‘decision maker’ to identify the reason for the dismissal. However, this will not always be the case.

Background

During her probationary period, Ms Jhuti (the ‘Employee’) made a number of protected disclosures to her line manager. In an effort to supress her disclosures, the Employee’s line manager sought to force the Employee out of the business by creating a false impression of the Employee’s performance. The Employee’s line manager, over a period of months, subjected the Employee to an unwarranted performance management programme and succeeded in creating a fabricated paper trail giving the impression that the Employee’s performance was inadequate. A third employee (the ‘decision maker’) was then appointed to review the evidence and decide whether the Employee’s apparent poor performance was such to warrant a dismissal.

The decision maker was unable to interview the Employee who had become too ill to participate in the review process as a result of the line manager’s treatment of her. The decision maker therefore relied, in good faith, upon the false evidence provided by the line manager and, having no reason to doubt the evidence, determined that the Employee should be dismissed.

Decision

The Court acknowledged that there were difficult matters to decide when determining whose ‘reason’ for dismissal should be attributed to the company; that of the line manager (whistleblowing reason) or that of the decision maker (poor performance).

In its reasoning, the Court analysed the decision of the Court of Appeal. The Court of Appeal had been bound by its earlier decision in Orr v Milton Keynes Council EWCA Civ 62, [2011] ICR 704. That case concerned an employee who was dismissed for acts of insubordination. However, the ‘decision maker’ in Orr dismissed the employee on the basis of true but incomplete information which obscured the reasons for the employee’s behaviour. In Orr, the Court of Appeal found that it was only the knowledge of the “person who was deputed to carry out the employer’s functions” in respect of the dismissal, i.e. the decision maker, which should be attributed to the company in determining the fairness of the dismissal.

The Supreme Court observed that Orr was not a suitable case to rely upon in the Royal Mail Group Ltd v Jhuti case, as the facts were not sufficiently comparable, not least because in Orr the partial information had been true, whereas in the present case the information was entirely fabricated.

The Court concluded that “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”. Accordingly, the Court concluded that the reason for the dismissal was the protected disclosures and therefore, the dismissal was unfair.

Practical considerations

Given the extreme facts of the case, the decision is not likely to have wide application. However, it does determine that a tribunal can look behind the reason given for a dismissal to scrutinise dismissal decisions more deeply and the case is a useful reminder of the importance of a thorough investigation of the facts, prior to taking the decision to dismiss. This is no less so when an employee is too ill to attend an investigation meeting; in such circumstances greater efforts must be made to enable the employee to participate in the investigatory process to ensure that both sides of the story are considered.

If you have any questions regarding this topic, please contact Linky Trott or any member of the Employment Team. 

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