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Automatic unfair dismissal and protected disclosures

Can a dismissal be automatically unfair for a protected disclosure, even when the dismissing officer did not have the disclosure in mind but was misled by a manager who was motivated by it?

The Court of Appeal held not, in the recent case of Royal Mail Ltd v Jhuti.

Ms Jhuti was a new employee at the Royal Mail who made a protected disclosure (commonly known as ‘whistleblowing’) to her line manager. A more senior manager decided to dismiss Ms Jhuti for poor performance.

She brought a claim for automatic unfair dismissal because of a protected disclosure and needed to show that the protected disclosure was the sole or principal reason for dismissal. However, the dismissing manager dismissed for what she believed to be poor performance by Ms Jhuti, on the basis of evidence presented to her by the line manager.

Ms Jhuti also brought a claim for unlawful detriment, i.e. adverse treatment other than her dismissal.

Workplace bullying

At the Employment Tribunal, she succeeded in establishing that her line manager had subjected her to a detriment by bullying her and manipulating the dismissal process but the tribunal rejected her claim for automatic unfair dismissal.

The Employment Appeal Tribunal overturned the tribunal’s decision finding that, on the facts, the line manager’s unlawful motivation should be treated as the reason for dismissal.

The Court of Appeal, however, held that this was impermissible and created a logical discrepancy. In deciding the reason for dismissal, the tribunal must only consider the mental process of the dismissing officer, representing the mind of the employer.

The court did not rule out that a different outcome may arise where, for example, a CEO of a business is the one pulling the strings of those below him or her, or a dismissal is based on findings of fact from an investigation conducted by a manager whose motivation is unlawful.

Compensation for financial losses

However, the Royal Mail was unable to escape liability entirely for dismissal, as the tribunal found that the line manager’s actions made dismissal “inevitable”. The court referred the matter back to the tribunal to consider whether Ms Jhuti should be compensated for financial losses flowing from dismissal on that basis. Some compensation seems likely.

The law on whistleblowing exists to protect whistleblowers.

Automatic unfair dismissal

Although ultimately Ms Jhuti lost her automatic unfair dismissal claim, the tribunal and court continued to demonstrate that whistleblowing law will be interpreted where possible so as to provide protection for the worker. Accordingly, employers would be well-advised to ensure that policies on whistleblowing and the treatment of whistleblowers are in place and communicated to staff, so that workers feel they will be properly protected when the raise concerns about wrongdoing.

For more information on any of the issues raised in this article, contact our Leeds Employment team.

 

Posted on Jan 30th, 2018 by Lyons Davidson

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