Case law update: Whistleblowing

Can a dismissal be found to be unfair on the basis that it is because of a whistleblowing disclosure which the disciplining officer didn’t know about?

Surprisingly yes! The recent case of Jhuti v Royal Mail Limited is an interesting one about whistleblowing and the reasons for dismissal. Here’s what you need to know:

Early on in Ms Jhuti’s employment with Royal Mail, she raised concerns with her team leader that another employee had breached the rules of the company and its regulator. Her manager (Manager 1) encouraged her to retract her allegation and from then began to criticise her performance, setting her unrealistic targets and requiring her to attend weekly progress meetings. This course of action resulted in Ms Jhuti being signed off sick and raising a grievance. During this period, another manager (Manager 2) - who knew nothing of the concerns raised with Manager 1 - decided Ms Jhuti’s employment should be terminated based on her performance. Manager 2 innocently relied on the information given to her by Manager 1 about Ms Jhuti’s performance. Ms Jhuti brought a whistleblowing claim; she argued that the principal reason for her dismissal was the fact that she had raised concerns (i.e. made a protected disclosure) to Manager 1.

The matter went through the Employment Tribunal, Employment Appeal Tribunal and Court of Appeal before ending up in the Supreme Court. On 27 November 2019, the Supreme Court held that where the real reason for a dismissal is hidden from the decision-maker behind an invented reason, the courts need to look at the hidden reason. So, in Ms Jhuti’s case, the court needed to look at why Manager 1 had started to criticise Ms Jhuti’s performance in the first place.

This may cause a bit of a stir for employers who have only previously had cause to consider the knowledge of the actual decision maker (i.e. if the decision maker didn’t know about the whistleblowing disclosure, they can’t possibly have dismissed because of it). The facts of this case are however rather extreme, as Manager 1 had clearly set about manipulating a set of circumstances to secure Ms Jhuti’s dismissal from the business. Employers should therefore take some comfort in the fact that this isn’t an everyday scenario. That said, here are our top tips on how to reduce the impact of this case going forward:

• Have robust whistleblowing policies and procedures in place to ensure that all employees and workers (no matter how senior) are aware of how concerns should be raised and that there will not be any fall out for any employee who raises genuine concerns.
• Ensure that employees are given time to present their case during disciplinary and/or performance management hearings. If they are worried about what is driving the process, they can let the relevant manager know and appropriate steps can be taken to investigate.
• Decision makers should liaise with their human resources departments to ensure that all information (including details of any grievances raised by the employee in question) is available to them. They can then make an informed and fair decision which takes into account all of the relevant facts.
• While we are talking about HR - remember that their role is to advise on the procedure; they aren’t there to make the decision. In the same way that the court looked behind Manager 2’s decision to find the motives of Manager 1, the tribunal will look behind a decision maker’s reasoning if they think that HR have advised on the correct outcome and this is likely to impact upon the fairness of the ultimate decision.