In the significant case of Royal Mail Group v Jhuti, the Supreme Court has overturned the judgment of the Court of Appeal and found that an employee was unfairly dismissed for making protected disclosures despite the fact that the dismissing manager was unaware of the disclosures when she made the decision to dismiss.

Facts

Ms Jhuti joined the Royal Mail Group as a media specialist in September 2013. Early in her employment she sent a series of emails to her line manager, W, raising concerns that another employee was breaching Ofcom guidance. W called Ms Jhuti to a four hour meeting during which she was persuaded to retract the allegations and was given new performance targets. After the meeting, Ms Jhuti was intensively performance managed by W, who made clear to her that she was unlikely to pass her probationary period. In March 2014 Ms Jhuti was signed off work with work-related stress, anxiety and depression. She never returned to work.

Whilst on sickness absence, Ms Jhuti was called to a meeting by another manager, V, who had been appointed by the company to determine whether her employment should be terminated. Ms Jhuti was too ill to attend the meeting and in July 2014 she was given a letter terminating her employment for performance reasons. Ms Jhuti brought a claim in the employment tribunal (ET) for automatically unfair dismissal on the grounds that she had made protected disclosures, contrary to section 103A of the Employment Rights Act 1996. She also brought a separate claim for detriments arising out of the protected disclosures, which were not the subject of the appeal to the Supreme Court.

The ET accepted that V genuinely believed that Ms Jhuti’s performance was inadequate and had dismissed her for that reason. However, it found  that V’s belief was based on incomplete and misleading information given to her by W. The ET therefore dismissed the unfair dismissal claim on the basis that V had been unaware of the protected disclosures and they had not formed part of V’s reasons for dismissal.

The Employment Appeal Tribunal overturned the ET’s decision but the Court of Appeal agreed with the ET, finding in line with earlier case law that the focus must be on the knowledge, or state of mind, of the person who actually took the decision to dismiss.

Ms Jhuti appealed to the Supreme Court.

Supreme Court decision

The Supreme Court decided that where, as here, the real reason for dismissal was that the employee had made a protected disclosure, the automatic consequence should be a finding of unfair dismissal. When looking for the reason for dismissal, it is generally only necessary to consider the reasons given by the decision-maker. In this case, however, the reason for the dismissal given in good faith by V was in fact a sham; the real reason for dismissal having been deliberately concealed from V by another employee. In these circumstances, in the words of the Supreme Court, “it is the court’s duty to penetrate through the invention rather than to allow it also to infect its own determination”.

The real reason for Ms Jhuti’s dismissal was W’s hidden reason, and not the “invented” reason. Accordingly Ms Jhuti’s appeal was upheld and her dismissal was held to be automatically unfair.

What to take away

This decision is highly significant as it suggests that, contrary to what was previously thought, an employer cannot simply look at the knowledge and reasons of the decision maker when determining the real reason for dismissal. Of course, in many cases the real reason and the decision-maker’s reason will be the same. The facts of this case are unusual and it is possible that the Supreme Court would have reached a different conclusion, along the same lines of that reached by the Court of Appeal and in line with previous authority, had there not been findings of significant levels of manipulation by W.

Going forward, employers will need to be wary of relying solely on a decision maker’s thought process in defending a claim, and may need to explore the question of whether there might be an underlying reason for dismissal.

For further information on how this issue might affect your organisation, please contact Rachel Luddem, Alistair Kernohan or Chloe Edwards.