Automatically unfair dismissal for making a protected disclosure

January 28, 2020, By

In the Supreme Court case of Royal Mail Group Limited v Jhuti, the Claimant made a protected disclosure to her line manager about a colleague breaching rules and regulatory requirements. The line manager’s reaction was to pressure the Claimant to retract her allegation, which she duly did. Thereafter, the Claimant’s line manager subjected her to an onerous performance management programme. The Claimant was subsequently dismissed for poor performance by another manager, who knew nothing of the history of the matter and who relied on the Claimant’s line manager’s assurances that he had dealt with the Claimant’s original concerns appropriately.

The Claimant brought an Employment Tribunal claim for automatically unfair dismissal by reason of making a protected disclosure (whistleblowing). The Tribunal dismissed the Claimant’s automatically unfair dismissal claim finding that the manager dismissing the Claimant was unaware that she had made a protected disclosure. Therefore, the protected disclosure could form no part of the dismissing manager’s motivation for the dismissal. On appeal, the EAT overturned this decision. The EAT’s decision was overturned on further appeal to the Court of Appeal.

The Supreme Court observed that the question to be decided was whether the Tribunal had correctly identified the reason or the principal reason for the dismissal. The Supreme Court considered that in this case, the Claimant’s line manager had deliberately hidden the real reason for her dismissal behind a fictitious one, which had been adopted in good faith by the decision maker on the Respondent’s behalf.

In searching for the reason for a dismissal, the Supreme Court considered that it is generally necessary to look only at the reason given by the decision-maker. However, where the real reason is hidden from the decision-maker behind an invented reason, it is the Court’s duty to look behind the invented reason. The Supreme Court therefore concluded that if a person in a position of responsibility above the employee determines that they should be dismissed for one reason, but hides it behind an invented reason which the decision-maker adopts, the reason for the dismissal is the hidden reason rather than the invented reason.

The facts of this case were interesting but will of course occur only rarely in practice. However, the case is important for cases dealing with dismissals where the reason for dismissal isn’t evident.