Does a decision maker need to be aware of the whistleblowing allegations before an employee can successfully claim automatic unfair dismissal on the basis she has been dismissed principally for having made a protected disclosure?
No, said the Supreme Court in Jhuti v Royal Mail Ltd. In a situation where an employee more senior than the claimant determines that the claimant should be dismissed for blowing the whistle (the Hidden Reason) but invents another reason for dismissal (the Invented Reason) which a separate dismissing manager adopts, the reason for dismissal is the Hidden Reason, rather than the Invented Reason. The fact that the dismissing manager was not aware of the Hidden Reason does not absolve the employer of liability where automatic unfair dismissal is concerned.
A short period into her new role as a media specialist for Royal Mail’s Sales Division, Ms Jhuti noticed what she thought were irregularities in the way that customers were being offered incentives. She believed that these were contrary to regulatory guidelines and reported her concerns to her manager.
Ms Jhuti’s relationship with her manager became strained and she was subject to continuous criticism about her performance. Her case was assigned to an HR investigation officer to conduct a review. Ms Jhuti’s manager did not inform the HR investigator of Ms Jhuti’s concerns about the irregularities. Although Ms Juti informed the HR investigator in writing that she was “being sacked for telling the truth”, the HR investigator accepted the manager’s assurances and did not undertake a detailed investigation into the matter. Ultimately, the HR investigator decided to dismiss Ms Jhuti on performance grounds. Ms Jhuti claimed that she had been automatically unfairly dismissed for making protected disclosures.
The Court of Appeal had previously held that it was only the thought processes of the person(s) authorised to and who took the decision to dismiss that should be considered – in Ms Jhuti’s case the HR investigator. There was no suggestion that the HR investigator was motivated by the fact that Ms Jhuti had blown the whistle.
However, the Supreme Court determined that its role was to identify the “real reason” for dismissal. In Ms Jhuti’s case, the real reason for her dismissal was the fact she had raised concerns about irregularities, which led to her manager inventing performance concerns which ultimately led to her dismissal.
On the face of it, this case is a worrying one for dismissing managers, who will be concerned that their decision-making may inadvertently give rise to an automatic unfair dismissal, despite the fact they were unaware of any protected disclosure having been made. Given the similarity of the statutory language relating to automatic unfair and ordinary unfair dismissal claims there is also concern that a similar approach will apply to ordinary unfair dismissal claims going forward.
However, practical steps can be taken by dismissing managers to mitigate against this:
- It is good practice for dismissing managers to check if protected disclosures have been raised. A clear whistleblowing policy will assist with this, as it should encourage employees to raise concerns in a way that is traceable and where outcomes can be clearly recorded.
- Breaking down the events leading to the potential dismissal will help, asking the question – “what has motivated that action” – at each turn.
- Preparing a chronology is also often key in identifying whether the making of a potential protected disclosure has triggered any negative action, which could be a detriment for the purposes of the whistleblowing legislation and ultimately lead to dismissal.
It is also worth noting, as the Supreme Court did, that a factual matrix similar to the Jhuti case will be rare. While dismissing managers will need to be live to the issue that a “rogue” manager may attempt to conceal disclosures which have been made to them in the context of an investigation, in practice, such a situation is extreme. Ms Jhuti’s case was also likely aggravated by the fact that she was too unwell to meet the HR investigator face to face. Had she done so she may have been better able to emphasise the seriousness of her concerns.