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Employment Law

Legal guidance - compliance - software

Veale Wasborough Vizards , 06 NOV 2017

Whistleblowing dismissal - is ignorance an excuse?

Whistleblowing dismissal - is ignorance an excuse?
Joanne Oliver
Senior Associate,
Veale Wasbrough Vizards

Has an employee been automatically unfairly dismissed by a manager if the manager was not aware that the worker had made a protected disclosure?



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Royal Mail Ltd v Jhuti 

Ms Jhuti made a protected disclosure to her line manager regarding what she perceived to be irregularities in the way that customers were being offered incentives. As a result of this disclosure, the manager subjected her to continual performance criticism and left a 'paper trail' of poor performance reviews. Ms Jhuti complained to HR that she was being harassed because she had made disclosures. Ultimately she raised a formal grievance and was signed off work.

The decision was taken to dismiss Ms Jhuti for inadequate performance by an investigating manager, who was deliberately misled by the line manager's performance reports and had no knowledge of her protected disclosure.

Ms Jhuti brought a claim for unfair dismissal as a result of making protected disclosures.

What Did the Tribunals Decide?

The Employment Tribunal (ET) held that the decision to dismiss Ms Jhuti was not automatically unfair dismissal due to a protected disclosure. It found that as the investigating manager was unaware of the protected disclosures, the principal reason for her dismissal could consequently not be as a result of her making protected disclosures.

The Employment Appeal Tribunal (EAT) overturned the ET's ruling on the basis that, although the decision was made by the investigating manager who was ignorant of the protected disclosures, the line manager responsible for Ms Jhuti was fully aware and consciously manipulated the situation. As such, his actions could be attributed to the employer in terms of the decision to dismiss.

In this broader interpretation, Ms Jhuti was dismissed as a result of having made protected disclosures and was subject to detriment from the moment that she made the disclosure to her line manager and he unfairly scrutinised her performance.

The Court of Appeal Decision

The Court of Appeal (CA) overturned the EAT's decision and held that, when determining unfair dismissal on the basis of a protected disclosure, the tribunal are only required to consider the motivations of the person who was responsible for the decision to dismiss. It rejected the finding of the EAT that the employer should be held responsible for the 'manipulator's' actions.

The CA stressed that in order to find that an unfair dismissal has taken place, there must have been unfairness by the employer. Unless unfair conduct by individual managers or employees can be attributed to the employer, it is immaterial to cases of unfair dismissal.

In reversing the EAT's decision, the CA did consider that the position may be different if the person taking the decision to dismiss was less senior than the person who was responsible for manipulating the dismissal decision (such as a senior employee or a CEO).

Best Practice

  • This case highlights the importance of conducting an investigation appropriate to the circumstances before a decision is taken to dismiss an employee.
  • Employers must ensure that they have in place clear whistleblowing policies and all employees are aware of their respective rights and responsibilities in relation to this.
  • When conducting investigations, employers must be aware of the possibility that managers may have attempted to conceal disclosures or manipulated the facts to the detriment of the employee under investigation. In certain circumstances, it would therefore be advisable for investigators to check that no protected disclosures have been made. In this case the investigating manager did not interview Ms Jhuti because she was on sick leave. Had she done so, the Line Manager's manipulation may have been exposed.
  • Although the decision maker's ignorance was sufficient in this case for the employer to negate liability for unfair dismissal, this may not be the position in every instance of manipulation of facts. If the manipulator is in a more senior position than the decision maker and they in turn influence the decision maker's motivation for dismissal, this may amount to unfair dismissal.