The Court of Appeal has overturned a decision of the EAT and confirmed only the mindset of the decision maker is relevant when determining if a decision to dismiss is automatically unfair.
Ms Jhuti (J) was a media specialist employed by the Royal Mail in 2013. She made a protected disclosure to her line manager Mr Widmer (W.) out of concern that the way some incentives were being offered to clients was in breach of regulatory guidelines. In response, W pressured her into withdrawing her allegations: J complied, sending W an email stating she had misunderstood and had her “wires crossed”.
J was then subject to bullying and harassment by W under the guise of performance management, including W setting unattainable targets and requiring J to attend weekly performance meetings. J raised several complaints about W with the HR department and was eventually signed off work with stress.
Another manager, Ms Vickers (V), was asked to assess whether J should be dismissed and was provided with the performance management information by W. V was unaware of the whistleblowing allegations or the full details of J’s complaints against W. She did not have an opportunity to discuss the matter directly with J, who was still on sick leave. When J mentioned issues with W in an email to V, W provided V with the “wires crossed” email (though not the protected disclosures), from which V understood that the matter was resolved.
J was dismissed on the basis of unsatisfactory performance, following which she brought a claim in the Employment Tribunal for unlawful detriment and automatic unfair dismissal arising from a protected disclosure (she did not have sufficient length of service for an unfair dismissal claim).
At first instance, J succeeded in the unlawful detriment claim but not on automatic unfair dismissal. The ET found that V as the decision maker was unaware of the motivations of W so the decision to dismiss has been made in good faith on the basis of the information provided on J’s performance.
On appeal to the Employment Appeal Tribunal (EAT), this decision was overturned. The EAT acknowledged that, without knowing the full details of the bullying and harassment, to an observer it would appear that W was following a bona fide performance procedure and J was performing poorly. However, the tribunal took the view that the reason and motivation of W in providing misleading information should be taken into account in considering the mindset of the decision maker: V’s decision was tainted by W’s actions, and thus unfair.
Royal Mail then appealed to the Court of Appeal, who reversed the EAT’s decision. In its judgment, the court determined that the person who can be said to have the knowledge of the state of mind of the employer is the person deputed to carry out the employer’s functions, i.e the decision maker. It would be “incoherent and unworkable” to consider the mental processes of a person other than the decision maker. Therefore the decision to dismiss was not automatically unfair.
Whilst many employers will sympathise that J’s dismissal was ultimately unjust on the basis of W’s actions, they will also welcome the Court of Appeal’s decision, which confirms that what the employer reasonably believed when dismissing an employee had to be determined by what the decision maker actually knew and not what knowledge ought to be attributed to them. Unfair dismissal is aimed at dealing with the intentions of the employer and not third parties acting on their own agenda, such as colleagues who deliberately provide false information as part of an investigation which is otherwise conducted in good faith.
However, it is worth noting that a different conclusion is likely to have been arrived at if the employee who had been seeking to distort the decision to dismiss was particularly senior or actively involved in the investigation. It remains important for employers to have robust whistleblowing policies which are clear about who reports can be made to beyond line managers and to consider during investigations whether employees have made any protected disclosures.