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In a claim for automatic unfair dismissal, the Employment Appeal Tribunal (EAT) has considered whether a dismissal can be said to have been on the grounds of a protected disclosure, even if the investigating officer didn't know that a disclosure had been made because that fact had been hidden from her.
In Royal Mail Group Limited v Jhuti, Ms Jhuti was employed by Royal Mail Group Limited (Royal Mail) as a probationary Media Specialist. She was inducted into Royal Mail's marketing practices, including the use of Tailor Made Incentives (TMIs) to upsell different mail services to existing customers. It was a serious breach of regulations to use TMIs to simply offer discounts on existing services.
Ms Jhuti believed that she had witnessed a colleague breaching these regulations and informed her team leader, Mr Widmer, of the suspected breach via email.
Rather than ask her about her account of what happened, Mr Widmer questioned her about her understanding of TMIs and advised her to admit she had made a mistake and retract her email. Ms Jhuti was pressured into sending an email apologising for the allegation and retracting it.
From that point, Mr Widmer required her to attend weekly progress meetings with him, set her 'an ever-changing unattainable list of requirements' and was critical of her. Ms Jhuti complained to HR of harassment and bullying because of her disclosures and eventually raised a formal grievance, before being signed off sick by her GP.
Another manager, Ms Vickers, who knew nothing of Ms Jhuti's grievance, was appointed to review her employment. She did not see any of Ms Jhuti's emails regarding the perceived misuse of TMIs but was shown correspondence between Ms Jhuti and Royal Mail, which she characterised as 'irrational'.
Mr Widmer told Ms Vickers that Ms Jhuti had raised the issue of inappropriate use of TMIs with him, but said Ms Jhuti accepted that she had misunderstood the situation. Mr Widmer showed her Ms Jhuti's email retracting her allegation but none of her other correspondence. Accepting what Mr Widmer had told her, Ms Vickers dismissed Ms Jhuti on the grounds that she had not met the standards required in the role of a Media Specialist and was unlikely to do so.
Ms Jhuti brought a claim for automatic unfair dismissal as a result of making protected disclosures.
The Employment Tribunal (ET)
The ET concluded that Ms Jhuti had made a protected disclosure for whistleblowing purposes and that, as a result of her disclosure, she suffered detriment, including bullying and harassment.
However, the ET concluded that, because Ms Vickers genuinely believed Ms Jhuti was a poor performer and was not motivated by the protected disclosures when deciding to dismiss, the complaint of automatic unfair dismissal could not be upheld.
Ms Jhuti appealed.
The EAT acknowledged that, in the vast majority of cases, it is only necessary to take into account the facts known to the person who made the decision to dismiss. However, where that decision-maker is being manipulated, the EAT said that the manipulator's motives can also be attributed to the employer.
The EAT allowed the appeal. It was satisfied that Ms Vickers' decision, made in ignorance of the true facts, had been manipulated by Mr Widmer who was in possession of the true facts. Ms Vickers' decision could therefore 'be attributed to the employer of both of them'.
Based on this, Royal Mail had dismissed Ms Jhuti because she made protected disclosures and this was automatically unfair.
Where an employee in a management role is actively seeking to mislead another manager who is carrying out a grievance or disciplinary investigation, it can be very difficult, in practice, for a business to protect itself against the consequences of such actions.
The person conducting the investigation should ensure that they have gathered all relevant information, particularly where they are unaware of the background of the matter. Assertions made by other members of staff should be analysed and reviewed critically and not taken at face value.