Manipulated whistleblower dismissal considered automatically unfair
An employee who is dismissed for having made a protected disclosure will be treated as having been automatically unfairly dismissed. It would therefore seem obvious that in order to dismiss by reason of the protected disclosure, the dismissing officer must know of the disclosure made and base their decision on it.
Not so, says the Employment Appeal Tribunal in Royal Mail Group Ltd v Jhuti
Ms Jhuti was a probationary Media Specialist in the Royal Mail’s Market Research team. She became concerned regarding the practices of colleagues and raised the issue with Mr Widmer, her line manager. Mr Widmer then began setting Ms Jhuti a series of unrealistic and unattainable goals, leading her to believe she was being bullied and harassed. Around six months after commencing employment, Ms Jhuti was signed off sick and did not return.
Another manager, Ms Vickers, was appointed to review Ms Jhuti’s employment with the Royal Mail and the grievance she had raised. Information which was material to the situation was withheld from Ms Vickers, including regarding the protected disclosures Ms Jhuti had made. Ms Jhuti herself was too sick to meet with Ms Vickers.
As a result of Ms Vickers review, Ms Jhuti was provided with notice of the termination of her employment. As she had less than two years’ service she could not bring an ordinary unfair dismissal claim. However, if she could show that her dismissal was because of the protected disclosures she did not need to have attained two years’ service and her claim would have jurisdiction.
The Employment Tribunal, at first instance, concluded that Ms Vickers could not have dismissed Ms Jhuti because of the protected disclosures. First because Ms Vickers did not have the full information regarding the protected disclosures. Secondly, Mr Widmer had misled Ms Vickers about them.
Having reviewed the evidence and law, the Employment Appeal Tribunal have overturned that judgment. They found that it was not just Ms Vickers’ mind that needed to be examined to understand the reason for the dismissal, but also the reason and motivation of Mr Widmer who misled Ms Vickers.
What does it mean for you?
Employers should continue to treat with caution any issue of performance or conduct which involves an employee who alleges that they are a whistleblower.
There is a temptation to separate out the issues and put only the ones of performance or conduct before a hearing, as the disclosures are often irrelevant to the issues the dismissing officer has to consider. However, given the outcome of Royal Mail Group Ltd v Jhuti
it is likely that employers will be better advised to ensure that a dismissing officer is in full knowledge of all the facts – including any protected disclosure made by the employee and the employer’s response to that disclosure.
For more information on the issues raised above or any other employment related matter, please contact a member of the Employment Team