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 the recent Employment Appeal Tribunal (EAT) case of Royal Mail Group v Jhuti, an interesting case where the dismissing manager had been misled by the Claimant’s line manager about her performance after she raised concerns about potential regulatory breaches.
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. Her employment was subject to a six month probationary period and she reported to Mr Widmer, her line manager. Although she was an experienced media salesperson, she initially shadowed a colleague.
As part of her induction, Ms Jhuti was told about Royal Mail’s marketing practices and legal constraints on use of those practices. One practice was to offer Tailor Made Incentives (“TMIs”) to certain customers to trial new products. 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 at a meeting with a potential client, Ms Jhuti became suspicious that the colleague 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 in an email at 8.16pm on 12 November 2013. At 9.52pm the same day, Mr Widmer emailed his own line manager to express concern about Ms Jhuti’s behaviour. It was suggested that the TMI issue be followed up. At a 4 hour 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, Mr Widmer set Ms Jhuti an ever changing unattainable list of requirements, which she took as an attempt to drive her out. This culminated in him emailing the HR Department to advise them that he had a member of his team who was not up to expectations and may need to be exited from the business. Matters progressed in a similar manner, leading to Ms Jhuti’s GP signing her off work in March 2014. Offers were made by Royal Mail to Ms Jhuti to terminate her employment (offering 3 months’ and latterly 12 months’ pay) but she refused to accept them. Ms Jhuti raised a grievance in the meantime.
In a bid to resolve the situation, Ms Vickers (a manager at a higher grade than Mr Widmer) was appointed to review Ms Jhuti’s employment. Ms Vickers was told about the TMI issue by Mr Widmer but only insofar as saying Ms Jhuti had misunderstood the position. Ms Vickers never saw the original email raising the concerns. Ms Vickers concluded that Ms Jhuti had not met the standards required in the role of a Media Specialist and was unlikely to do so. She took the decision to dismiss. Ms Jhuti appealed but the appeal was rejected.
Ms Jhuti brought an employment tribunal claim for unfair dismissal as a result of having made protected disclosures. She also claimed to have been subjected to detriments. The tribunal found that she had made a protected disclosure and been subjected to detriments in the form of bullying and harassment by Mr Widmer and being made offers to leave Royal Mail in return for a severance payment. However, the tribunal found that Ms Jhuti was not automatically unfairly dismissed. Ms Vickers didn’t have knowledge of the disclosures and genuinely believed that Ms Jhuti was a poor performer. Crucially, as Ms Vickers 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 allowed the appeal.
The EAT set out that the key question in a whistleblowing claim is whether a protected disclosure is the principal reason for the dismissal. In most cases, all that is required is to identify the facts known to the person who made the decision to dismiss.
However, the EAT found that there can be cases where a decision made by one person in ignorance of the true facts and which is manipulated by someone else in a managerial position who is in possession 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.
The EAT found that Ms Jhuti was deliberately subjected to detriments from the moment she made the disclosures to Mr Widmer. He then successfully created a paper trail which set Ms Jhuti up to fail and deliberately misled and lied to Ms Vickers about Ms Jhuti’s disclosures. As she was dismissed for making protected disclosures, the dismissal was automatically unfair.
Whilst this is an unusual case on the facts, it provides a good lesson for employers who may be faced with a whistleblowing employee.
Employers should firstly 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. The term detriment can include a wide range of acts or omissions, including failing to promote an employee or subjecting them to disciplinary action or closer monitoring. Compensation for whistleblowing claims is uncapped in the employment tribunal.
The importance of adequately investigating matters cannot be stressed enough. If the dismissing manager in this case had been fully and accurately informed of the background before taking the decision to dismiss, her thinking may have been different. The decision shows that being ignorant of key background facts will not assist an employer in a whistleblowing claim if the decision maker’s understanding has been manipulated by managers around them.
Whilst employers can be liable for acts of their employees, they have a defence to whistleblowing claims if they can show that they took all reasonable steps to prevent the detrimental treatment. Employers should give consideration to implementing a whistleblowing policy which sets out how to raise concerns, how they will be dealt with and specifically how employees and managers must behave towards a colleague who has blown the whistle. Training managers on the policy and dealing with any whistleblowing issues swiftly will go a long way to give the employer the benefit of the defence.
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.