Whistleblowing and unfair dismissals

Workers that ‘blow the whistle’ on malpractices by their employers are provided additional legal protections under the Employment Rights Act 1996. They must not be subjected to any detriment by their employer on the grounds that they have made a protected disclosure. Further, if the main reason for an employee’s dismissal is that disclosure, then the dismissal will automatically be unfair. In CLFIS (UK) Ltd v Reynolds [2015] IRLR 562 (‘CLFIS’), the Court of Appeal held that, when determining whether direct discrimination has taken place, the tribunal should focus on the thought processes and motivation of the decision-maker. However, in the case of Royal Mail Group Limited v Jhuti UKEAT/0020/16, the EAT had consider whether an employee was unfairly dismissed by a manager who was not aware of her protected disclosures.

Facts

Ms Jhuti was employed by Royal Mail Group Limited (‘Royal Mail’) from September 2013 until October 2014, when she was dismissed. Following a meeting with a customer and another colleague, she suspected that Royal Mail’s rules, and the regulator’s requirements, were being breached. She therefore emailed her line manager, Mr Widmer. His reaction was to question her understanding and to advise her to send an email retracting her allegation and admitting she had made a mistake. Fearing that she may lose her job, Ms Jhuti complied.

Mr Widmer then began to closely monitor Ms Jhuti’s progress, and set her an “ever changing unattainable list of requirements” amongst other things (including asking her to compile a list of contacts from her previous employment). Eventually, she contacted HR to raise a grievance. Another manager, Ms Vickers, who knew nothing of the background, was appointed to review the case, excluding her grievance. She was not given any of the emails containing the disclosures. Ms Vickers discussed the situation with Mr Widmer, who told her in the briefest terms that Ms Jhuti had alleged improper conduct at Royal Mail but that she had retracted the allegations on the basis of her misunderstanding. Ms Vickers then terminated Ms Jhuti’s employment for poor performance. After her internal appeal was rejected, Ms Jhuti lodged a claim for unfair dismissal at the Employment Tribunal (‘ET’).

The decision

The ET found that Ms Jhuti had made protected disclosures and that she had been subject to detriment, in the form of harassment and bullying by Mr Widmer. However, it held that there was no automatic unfair dismissal as, pursuant to CLFIS, Ms Vickers had not seen the emails including her disclosures and therefore had no knowledge of them. Her decision had not been motivated by the protected disclosures.

Ms Jhuti appealed the decision, which was allowed by the Employment Appeal Tribunal (‘EAT’). It distinguished the case from CLFIS on the grounds that it concerned a claim of direct discrimination, and not whistleblowing. Instead, it held that, in cases like these, tribunals must consider ‘the reason (or, if more than one, the principal reason) for the dismissal’. It did not matter that Ms Vickers was not in possession of the true facts. Her decision was manipulated by someone in a managerial position who was responsible for the employee and who was in possession of the true facts. Accordingly, it was held that her dismissal amounted to victimisation.

Comment

This EAT’s decision, although not particularly helpful for employers, does provide some clarity on dismissals within the whistleblowing regime. Employers may find it more difficult to avoid a finding of automatic unfair dismissal, and it is difficult to see any practical way around this when an employee is withholding crucial information. Further, this case applied to the manipulation of information by a senior employee, and it will be interesting to see whether the same logic is applied when the manipulation is done within a different working relationship (e.g. between colleagues at a similar level).

For any further information on the above, please feel free to contact a member of Devonshires’ Employment Team.

 

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