Where an employer dismisses an employee because they have blown the whistle about some form of wrongdoing, the dismissal will be automatically unfair under the Public Interest Disclosure Act. Usually all that is required to get to the bottom of whether this has happened is to look at the motivation of the person effecting the dismissal. However, it is not always that simple.

Facts

Ms Jhuti joined Royal Mail as a media specialist in 2013. In October 2013, Ms Jhuti drew her manager’s attention to what she believed was a serious regulatory breach relating to the offer of more expensive tailor made services to new customers. She sent a number of emails to her manager, Mr Widmer, about this; however, her manager’s response was to call her into a meeting at which he questioned her understanding of the regulations and told her it would be better if she admitted she had made a mistake and sent him an email retracting the allegations. Ms Jhuti  felt so threatened that she did so. 

The line manager then proceeded to micro manage and bully Ms Jhuti and set her up to fail. Ms Jhuti complained to HR to no avail and subsequently went off sick with stress.

Royal Mail made an offer of 3 month’s pay for Ms Jhuti to leave the company and, upon receipt of a formal grievance from Ms Jhuti, this was increased to a year’s salary – on the face of it, an extraordinary offer to make to an employee who was still in her probationary period!

Another manager, Ms Vickers, was asked to look into Ms Jhuti’s alleged poor performance and take a decision about the future of her employment, Ms Vickers was not shown the whistleblowing emails or Ms Jhuti’s grievance.  Having been alerted to the fact that an issue had been raised by Ms Jhuti, she was told by Mr Widner that Ms Jhuti had accepted that she had been mistaken and shown a copy of Ms Jhuti’s email retracting her allegations. As Ms Jhuti was off sick, Ms Vickers did not have the opportunity to speak to her. Ms Vickers concluded that Ms Jhuti was unable to perform her role to a satisfactory standard and dismissed her.

The employment tribunal was sympathetic towards Ms Jhuti; however, it concluded that her dismissal could not have been because of the protected disclosures she had made because the person who took the decision to dismiss her had not dismissed her because she had blown the whistle but because of a genuine albeit mistaken view that she was a poor performer.

EAT Decision

The EAT took a different view, however, finding that even where the person who took the decision to dismiss was not motivated by the fact that an employee has made protected disclosures, the dismissal may still be automatically unfair if that is in fact the underlying reason for the dismissal. The employer is not necessarily to be equated with the dismissing officer. In this case, Mr Widmer had clearly manipulated the decision to dismiss. He had bullied Ms Jhuti from the moment she blew the whistle and set up a paper trail which set her up to fail. He had also lied and misrepresented the facts to Ms Vickers. Mr Widmer’s motivation was just as relevant as that of Ms Vickers, and once that was taken into consideration, it was inevitable that dismissal would occur and the reason for dismissal was that Ms Jhuti had blown the whistle. 

Comment

What lessons can be drawn from this case? Most employers do not wish to dismiss their employees in this way, but those that do may find it harder to get away with it as a result of this decision! Perhaps more usefully, this case demonstrates the importance for the dismissing officer of undertaking a full investigation before any decision to dismiss is taken. Had Ms Vickers looked into the facts more thoroughly, for example by speaking to HR, she would have discovered Ms Jhuti’s protected disclosures and made sure that she questioned Ms Jhuti about these before she made a decision. 

It is also interesting to note that the offers of termination payments made to Ms Jhuti were seen by the Tribunal as an indication that senior management within Royal Mail were concerned about Ms Jhuti’s protected disclosures, leading to a conclusion that where there was a dispute of evidence about what Mr Widmer had said or done, Ms Jhuti’s version of events was more likely to be correct.

Royal Mail Group Limited v Jhuti UKEAT 0020/16