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Should an Employment Tribunal judge the fairness of a dismissal by what a decision making employee knew and what they should have known?

Back in July 2016 the EAT decided that an employee could be automatically unfairly dismissed under the whistleblowing legislation even if their dismissal was actioned by an employee who had not been made aware of an employee’s previous protected disclosures. At the time, many commentators found this to be a very harsh decision and one that was likely to be appealed. It has now been appealed and the Court of Appeal have recently handed down their decision in this appeal in the case of Royal Mail Ltd v Jhuti [2017] EWCA Civ 1632.

Miss Jhuti who worked for Royal Mail became concerned that her manager was not following required Royal Mail protocols. Because she believed her manager was not following the required protocols she was concerned that Royal Mail was failing to meet Ofcom standards.

Miss Jhuti then raised her concerns with her manager. Her manager met with her and, after questioning her about her knowledge of the relevant protocol standards, suggested that she retract the allegations of failing to follow relevant Royal Mail protocols. Miss Jhuti confirmed that she retracted the allegations because she feared for her job. In today’s uncertain labour market this is a common concern raised by employees.

Miss Jhuti then entered into a period during which her manager sought to address issues about her performance. Miss Jhuti then raised a grievance and she subsequently went off sick.

Royal Mail sensibly appointed another manager to review her case as part of the grievance process. Importantly, the investigating manager was only made aware of Miss Jhuti’s email that retracted the raising of the protected disclosures against her manager. No other information was given to the grievance investigation manager about the protected disclosures. In short, the grievance investigating manager had only an isolated snapshot of events surrounding the protected disclosures previously raised by Miss Jhuti.

Miss Jhuti was subsequently dismissed for poor performance. Not surprisingly, Miss Jhuti brought a Tribunal claim for automatic unfair dismissal under the whistleblowing legislation.

In the Employment Tribunal, Miss Jhuti lost. The Tribunal decided that the manager who dismissed Miss Jhuti (not the manager against whom the protected disclosures were made) believed she was dismissing Miss Jhuti for poor performance. Miss Jhuti appealed the Employment Tribunal’s decision. Surprisingly, the EAT upheld Miss Jhuti’s appeal. In short, it found that a decision to dismiss can be unlawfully attributed and tainted by the unlawful motives of another employee even if the decision making employee is ignorant of the true facts and even if they are manipulated by someone else in possession of the true facts. This was generally considered a harsh judgement for employers as it effectively meant that the fact that an individual employee decision maker who is ignorant in his or her decision making process of an employee’s protected disclosure would not be sufficient grounds for an employer to escape liability under the whistleblowing legislation.

The Court of Appeal has now decided that the EAT was wrong. The Court of Appeal has sensibly held that the statutory right not to be unfairly dismissed for blowing the whistle depends on there being unfairness on the part of an employer. It was found that Miss Jhuti’s dismissal was on the facts of this case fair. The Court of Appeal held that when a Tribunal considers the fairness of any dismissal it must consider that dismissal by reference to what the decision making employee actually knew at the time he or she made the decision to dismiss.

Importantly, the Court of Appeal decided that it is not right to consider what knowledge ought to have been attributed to the decision making employee at the time of the dismissal. This is a sensible decision. It now seems to provide clarity for employers on this particular point.

What does this mean for you or your business?

Although there does now appear to be a sensible decision on this particular point surrounding manipulation of evidence, employers should still be wary. The position generally seems to be that where an employee has manipulated evidence and that employee has no part in or responsibility for an employee’s dismissal there should be no risk of that employer being found liable for an automatic unfair dismissal. For example, if an employee’s peer has deliberately given false evidence to an investigating manager then this should not make any subsequent dismissal unfair. The company should however consider disciplining that employee who deliberately gave false evidence if this becomes known to the employer.

However, where an employee has manipulated evidence and that employee has some responsibility for an investigation into another employee’s conduct or performance, for example, then there will be a strong case for attributing the actions of the manipulating manager to the dismissing or disciplining manager. In this case, liability could well rest with the employer. For example, had the manager in Miss Jhuti’s case who pressurised her into withdrawing her protected disclosures been part of the performance process which led to her eventual dismissal the outcome of this case may have been very different.

What do you need to be doing now?

Employers need to consider an employee’s history of whistleblowing allegations when separate performance or misconduct proceedings are started against staff who have previously blown the whistle. Employers should consider whether it is appropriate to have a manager involved in disciplinary or performance proceedings where that manager has previously been the subject of or involved in whistleblowing allegations. The sensible course of action may be to appoint somebody to manage that disciplinary or performance process who has had no previous involvement in whistleblowing proceedings.

 

These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.