Employment and Immigration Law Update – Whistleblowing: the reason behind the dismissal
18 December 2019
The Supreme Court has handed down its decision in a case looking at the circumstances when a dismissal is automatically unfair due to an individual making a protected disclosure.
Royal Mail Group Ltd v Jhuti [2019] UKSC 55
Facts
The claimant in the case, J, had made a protected disclosure to her line manager relating to an alleged breach of the employer’s rules and regulatory requirements. After making the disclosure, she was subjected to an onerous performance management procedure by her line manager. Following a period of sick leave, J was eventually dismissed for poor performance by another manager, who was not fully aware of the background or of the protected disclosure.
J brought claims for having been subjected to detriments and for automatic unfair dismissal, both on the grounds that she had made a protected disclosure. An employment tribunal rejected her claim for unfair dismissal on the basis that the manager who had made the decision to dismiss was unaware that she had made a protected disclosure, therefore the disclosure could not have been the reason for the dismissal. This decision was overturned by the Employment Appeal Tribunal, but the Court of Appeal agreed with the original tribunal’s decision that the focus had to be on the knowledge, or state of mind, of the person who actually took the decision to dismiss (see our previous summary of the Court of Appeal’s decision). J appealed to the Supreme Court.
Supreme Court decision
The Supreme Court has upheld the appeal, finding that J’s dismissal was automatically unfair due to making a protected disclosure.
The Court said that it is generally only necessary to look at the reason for dismissal given by the decision-maker, but if the real reason for the dismissal (in this case, the protected disclosure) is hidden from the decision-maker behind an invented reason, it is the court’s duty to look behind the invention. If the hidden reason has been determined by someone in the hierarchy above the employee, that reason can be attributed to the employer as being the true reason for the dismissal, rather than the invented reason.
Consequences
This decision will have wider implications beyond whistleblowing, as the principles it establishes will apply equally to dismissals falling within the category of ‘ordinary’ unfair dismissals. It means that tribunals will be entitled to look behind the decision-maker’s stated reason for the dismissal, in circumstances where that reason may have been used to disguise the true reason for the dismissal. However, the Court also recognised that the facts of this case were ‘extreme’, and therefore instances of a dismissal for a reason deliberately constructed by an individual’s line manager would not be common in practice.
This article is from the December 2019 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website.
The content of this article is for general information only. For further information please contact Liz Stevens or another member of Birketts’ Employment Law Team.
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Liz Stevens
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at December 2019.