Dismissing a worker because they've blown the whistle can lead to a finding of automatic unfair dismissal. But what if the person who made the decision to dismiss was misled by the employee's line manager as to the true facts? Will this still amount to automatic unfair dismissal?
Last year, the Employment Appeal Tribunal (EAT) ruled that the employer should be liable nevertheless and that the line manager's reasoning and motivation should be taken into account and attributed to the employer even though the reasoning was misleading. This was not good news for employers since it clearly bolstered an employee's chances of overcoming the tricky issue of causation in proving a whistleblowing dismissal. However, employers will be relieved to know that the Court of Appeal has disagreed, and has confirmed that a dismissal cannot be for reason of whistleblowing if the decision maker was ignorant of the employee's protected disclosure.
Employees have statutory protection against being dismissed for reason of making a protected disclosure (blowing the whistle). In the event that an employee is dismissed after whistleblowing, the employer must demonstrate that the protected disclosure was not the real reason for dismissal, but that there a set of facts known, or beliefs held, by the employer that provide a potentially fair reason for dismissal.
The facts of the case
Ms Jhuti, an employee at Royal Mail, made protected disclosures to her immediate line manager, Mr Widmer. In response, Mr Widmer put her under great pressure to withdraw her allegations, which Ms Jhuti did, fearing her employment would be terminated if she did not do so.
Ms Jhuti was subsequently subjected to a series of unattainable performance goals set by Mr Widmer. After a period of what Ms Jhuti described as harassment and bullying from Mr Widmer, as a result of her disclosures, Ms Jhuti raised a grievance and went on sick leave.
Another manager, Ms Vickers, reviewed Ms Jhuti's position with Royal Mail. Ms Vickers did not see all of Ms Jhuti's emails setting out her protected disclosures. Instead, Mr Widmer deliberately misled Ms Vickers and supplied emails demonstrating that Ms Jhuti had withdrawn her disclosures. Ms Vickers accepted this without further investigation and Ms Vickers made the decision to dismiss Ms Jhuti for poor performance.
After an unsuccessful appeal, Ms Jhuti brought an employment tribunal claim alleging automatic unfair dismissal as a result of making protected disclosures. The employment tribunal found that Ms Jhuti had been subject to detriment as a result of her disclosures, but did not find that she had been automatically unfairly dismissed as Ms Vickers, the decision maker, had not taken the protected disclosures into account.
Ms Jhuti appealed to the EAT. Allowing the appeal, the EAT held that the reason and motivation of Mr Widmer must also be taken into account, as it has informed Ms Vicker's decision to dismiss. Therefore, Ms Jhuti has been dismissed as a result of her protected disclosures.
Royal Mail challenged this decision in the Court of Appeal. The Court reversed the EAT's decision and decided that when determining the reason for dismissal, the tribunal should only be obliged to consider the mental processes of the person or persons who were authorised to, and did take the decision to dismiss. The Court noted that it may seem unfair that the employer should escape liability for unfair dismissal in these circumstances, but considered that there must be unfairness found on the part of the employer. As a result, there must be a line drawn between those employees whose conduct can be properly attributed to the employer (such as the dismissal decision maker) and those whose conduct is immaterial (such as individual colleagues or managers who did not influence the decision to dismiss) as it cannot be properly attributed to the employer.
The judge made clear that this decision does not in principle preclude the employees from recovering losses occasioned by dismissal as compensation for unlawful detriment. It is worth noting that compensation in detriment cases is uncapped and assessed in a similar way to discrimination claims so could be substantial.
The Court of Appeal did also consider cases of manipulation of evidence, commenting that the status of the manipulator may be taken into account. The Court reached a view that manipulation of evidence by a colleague of no managerial responsibility or a line manager would not constitute behaviour attributable to the employer, provided that this manipulation was not in the knowledge of the decision maker. Whereas an employer may well be considered as vicariously liable for manipulation of evidence by a CEO, for example.
What this decision means for employers
This case will come as welcome news to employers as it takes us back to the previously understood position that a decision maker would, at the very least, need to be aware of the relevant protected disclosure for a whistleblowing dismissal to be made out. This judgement confirms that this is the case, seemingly even where the evidence the manager considered in coming to the decision was deliberately tainted. This decision therefore provides a safety net for employers where a protected disclosure was not known or considered by the decision maker in the dismissal process.
However, as the Court of Appeal pointed out, the employee in this case may still have a remedy by taking her claim back to the employment tribunal to consider her losses which flow from her claim for unlawful detriment. This case is therefore not an open invitation for employers to break down lines of communication, nor take all evidence in such investigations at face value, particularly in light of the ability to claim uncapped losses for unlawful detriment. It is therefore advisable for employers to still take all reasonable steps to confirm that the evidence used as the basis for dismissal is reliable and has not been manipulated by another individual. Employers must still have adequate whistleblowing procedures in place, and ensure that, in the event of dismissal following a protected disclosure, a potentially fair reason can still be demonstrated.
Royal Mail v Jhuti [2017] EWCA Civ 1632
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