The facts which are of interest and relevance to this article go like this: In October 2013, Ms Jhuti, a media specialist, alerted her line manager about concerns that a colleague was infringing Ofcom’s guidance and company policy, a complaint that would classify as whistleblowing.
Following a meeting with her Line Manager, Ms Jhuti was worried that her job would be at risk if she pressed further with the allegations and retracted her complaint. Following the withdrawal of the whistleblowing complaint, the Line Manager's response to the disclosures was to pretend, over the course of several months, that Ms Jhuti’s performance in her role was inadequate. The Line Manager sent an email to HR alleging that Ms Jhuti was not performing and recommended “exiting” her if she did not improve. As a result of the Line Manager’s complaint, Ms Jhuti was placed on a six-week performance improvement plan (PIP). Ms Jhuti, in response, alleged the PIP had stemmed from her earlier whistleblowing complaint and raised a further complaint in relation to the treatment by her Line Manager.
Ms Jhuti, was subsequently signed off with work-related stress. During her period of ill health, a capability procedure was followed by the employer and Ms Jhuti was ultimately dismissed by a different manager by reason of capability, based in part upon the evidence provided by the Line Manager. There was no evidence to suggest that the dismissing manager had any reason to doubt the evidence provided to them and had genuinely believed that the performance of the employee had been inadequate based on the evidence available.
Ms Jhuti brought a claim in the Employment Tribunal (ET) for ‘automatic’ unfair dismissal by reason of her blowing the whistle. Ms Jhuti further alleged that her dismissal was unfair and was based on false information about her performance that was given to the HR department by her Line Manager.
At first instance the ET dismissed Ms Jhuti’s claim and held that the decision-maker had dismissed her based on a genuine belief that her performance had been inadequate, not for reasons of her whistleblowing. At this time, the ET came to the decision based on relevant case law available, in particular that it should be what is the mind of the dismissing manager at the time of the dismissal. Ms Jhuti appealed the decision to the Employment Appeal Tribunal (EAT).
Matters then proceeded through the tribunal/court appeal system with the EAT and, latterly, the Court of Appeal disagreeing with each other on the interpretation of the law, in particular whether the ET was only obliged to consider the thought processes of the employer’s authorised decision-maker (the dismissing manager) and not the actions of other employees such as the Line Manager. The matter was ultimately destined for the Supreme Court.
On 27th November 2019 the Supreme Court reversed the Court of Appeal’s decision, finding that the real reason for Ms Jhuti’s dismissal was the fact that protected disclosures had been made which led to the PIP and ultimately dismissal of Ms Jhuti. This landmark decision greatly expands the protection for whistleblowers and it is now clear that a decision made on manipulated facts will be attributable to the company and not to the decision-maker alone.
What does this mean for you or your business?
Before deciding to terminate an employee’s employment – specifically if a whistleblowing complaint has been made – please ensure that you have sought advice from human resources, or the company’s lawyers to ensure that the most complete information available is being used to inform the dismissing officer of the decision to dismiss.
What do you need to be doing now?
Employers should take note of the shift in the law: a fair and reasonable procedure is no longer enough for a ‘safe’ dismissal. There is now even more of an incentive for employers to investigate the real causes of whistleblowing grievances in the workplace, to ensure that there is no “hidden reason” behind the capability/ conduct process before the decision to dismiss is made.
To add confusion to matters, it is worth noting that the law in relation to straightforward discriminatory dismissals is different: the Tribunal will continue to focus on the thought processes and motivations of the decision-maker and not those who provided the information to them.
These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.