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Ignorance is bliss!

If an employee is dismissed having made a protected disclosure, but the dismissing manager knows nothing about that disclosure, can the Claimant succeed with a whistleblowing claim?

This was considered in July 2016 by the Employment Appeal Tribunal case of Royal Mail Group v Jhuti, we now revisit this interesting case at its appeal in the Court of Appeal.

Royal Mail Group Ltd v Jhuti

Ms Jhuti was employed by Royal Mail as a Media Specialist from September 2013 until her dismissal in October 2014. Ms Jhuti was told about Royal Mail’s marketing practices and legal constraints on use of those practices, special attention was drawn to Tailor Made Incentives (“TMIs”). It was stressed that TMIs must not be used solely for the purposes of reducing the price of Royal Mail services to a client. Doing so would be a serious regulatory breach. Whilst shadowing a colleague, Ms Jhuti became suspicious that they had offered a TMI as a way to discount the services, which would be a regulatory breach.

Ms Jhuti reported her concerns to Mr Widmer. At a meeting between Ms Jhuti and Mr Widmer, he suggested that it would be better if she admitted that she had made a mistake and advised she send a retracting email, which she agreed to do. He went on to give her a dressing down about performance and a list of tasks to complete.

Thereafter, motivated by the disclosure, Mr Widmer misled a fellow manager, telling them that the TMI issue was a misunderstanding on Ms Jhuti’s part and raised concerns about her performance. On investigation, Ms Jhuti was subsequently dismissed for not meeting the standards required in the role of a Media Specialist.

Ms Jhuti brought a claim for unfair dismissal as a result of having made protected disclosures.

Employment Tribunal and Employment Appeal Tribunal

The Employment Tribunal found that Ms Jhuti was not automatically unfairly dismissed due to making a protected disclosure. Crucially, it set out that as Ms Vickers (the dismissing manager) did not know about the disclosures, the principal reason for dismissal cannot have been that she made protected disclosures and her whistleblowing claim therefore had to fail. Ms Jhuti appealed to the EAT.

The EAT overturned the ET’s decision and found that there can be cases where a decision made by one person in ignorance of the true facts can be attributed to the employer. Consequently, the EAT considered that Ms Jhuti was dismissed as a result of having made protected disclosures. It concluded that Ms Jhuti was deliberately subjected to detriments from the moment she made the disclosures to Mr Widmer.

Court of Appeal

The Court of Appeal reversed the EAT’s decision and held that in determining the reason for dismissal an Employment Tribunal is only obliged to consider the mental processes of the person who took the decision to dismiss and that the ‘manipulators motivation’ should not be attributed to the employer. The court highlighted that the most important point of the statutory right not to be unfairly dismissed depends on their being unfairness on the part of the employer and unfair or unlawful conduct on the part of individuals is immaterial unless it can be properly attributed to the employer.

Comment

Whilst this is an unusual case, it indicates that employers will have a defence against whistleblowing claims if the dismissing manager has been misled by the wrongful acts of other managers.

The case also highlights lessons for employers who may be faced with a whistleblowing employee. Employers should be mindful of the protection afforded to whistleblowers and ensure that they aren’t subjected to any detriment or dismissed because they have made a protected disclosure. Matters should be investigated thoroughly to ensure all background facts are obtained. Although this case has resulted in a favourable outcome for the employer (subject to any appeal), doubts were raised in the judgment about whether the position would be different if more senior members of staff, such as a CEO, were the ones manipulating the facts.

Employers should review their whistleblowing policy and ensure it set outs how employees and managers must raise and deal with whistleblowing claims.

If you have any queries relating to whistleblowing or if you have any other employment law or HR queries please contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.

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