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Farrer & Co | Whistleblowing and the mind-set of the decision-maker

The recent Court of Appeal case of The Royal Mail -v- Jhuti gives guidance for employers when reaching decisions to dismiss employees in circumstances where the employee has in the past raised protected disclosures.

Ms Jhuti joined The Royal Mail as a media specialist. Shortly after joining she raised concerns with a team leader that incentives were being offered to clients in breach of regulatory guidelines. Her concerns amounted to protected disclosures under the whistleblowing legislation. Ms Jhuti was then placed under some pressure to withdraw her concerns (which she did) and thereafter was subject to bullying (including setting unreasonable performance targets) by the team leader. She subsequently raised a formal grievance and was then signed off sick with stress.

Another independent manager was asked to assess whether Ms Jhuti should be dismissed and was provided with performance management information by the team leader. The manager was unaware of Ms Jhuti's earlier protected disclosures and subsequently decided to dismiss Ms Jhuti on performance grounds.

Ms Jhuti brought claims in the Employment Tribunal for unlawful detriments as a consequence of making the protected disclosures and automatically unfair dismissal arising from the protected disclosures. She did not have the qualifying length of service to bring an ordinary unfair dismissal claim. The Employment Tribunal found that Ms Jhuti had suffered unlawful detriments (for example harassment by the team leader) but was not successful in her claim for automatically unfair dismissal because the independent manager who reached the decision to dismiss was unaware of Ms Jhuiti's protected disclosures or that she had been provided with misleading information by the team leader.

The Court of Appeal recently upheld the decision of the Employment Tribunal on the grounds that the automatically unfair dismissal claim could not be successful because the decision-maker did not know about the protected disclosures, despite the fact that the manager had been provided with misleading information by the team leader (improperly motivated by the earlier protected disclosures). The judgment makes clear that the decision may well have been different if the person providing the misleading evidence was a manager with some responsibility for the investigation (e.g. the investigating officer) or if the decision to dismiss was procured by someone very senior at the employer.

This case reiterates the importance of analysing carefully the mind-set of the decision-maker (rather than a much wider group of employees) in a dismissal case. If the decision-maker is unaware of past protected disclosures it may well be difficult for an employee to argue that their dismissal is automatically unfair as a result of whistleblowing. In cases where employees have in the past raised protected disclosures but there are supervening reasons for dismissal, employers may decide that it is prudent to appoint an independent manager to carry out any investigation and/or to reach any decision to dismiss rather than someone who has been involved in dealing with any whistleblowing allegations in the past.

The Court of Appeal also left open the possibility that Ms Jhuti may recover compensation due to her dismissal consequent on the earlier detriments. This is a question of fact for the Employment Tribunal to determine at the remedy hearing.

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