Victimisation: Knowledge of Protected Disclosure

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In Royal Mail Ltd v Jhuti the Court of Appeal held that if a person making a decision to dismiss was unaware of the protected disclosures and was deliberately misled by the employee’s line manager to believe that the reason for dismissal was poor performance then this would not be considered a whistleblowing dismissal.

The Claimant, Ms Jhuti, was a Royal Mail employee and made a protected disclosure to her line manager. During her dismissal process, the line manager, being motivated by the protected disclosure, purposely misled the investigation manager allowing her to think that Ms Jhuti should be dismissed for poor performance. The EAT found that the reason and motivation of both the decision maker and the line manager should be taken into account and this could be attributed to their employer.

The Court of Appeal reversed the EAT’s decision. It was held that when determining the ‘reason for dismissal’ it was only necessary for the tribunal to consider the mental processes of the person who actually made the decision to dismiss. Some doubt was raised whether the position might be different if, in cases of manipulation, the CEO deliberately manipulated the dismissal decision.

It was stressed that unfair dismissal cases do require unfairness by the employer. Unfair treatment by line managers or colleagues is unimportant unless they can be properly attributed to the employer.

The employment tribunal now have to decide whether Ms Jhuti can claim compensation for dismissal consequent on unlawful detriment.

Written by

Edward Aston
28th November 2017