The recent case of Royal Mail Ltd v Jhuti  EWCA Civ 1632 considered whether a decision by a manager to dismiss an employee, in ignorance of the employee’s whistleblowing complaints, was fair.
The Claimant worked for Royal Mail’s sales division. Shortly after commencing her probationary period, the Claimant became concerned that a colleague of hers was acting in a way which breached both Royal Mail protocol and Ofcom standards. The Claimant reported these concerns to her line manager and instead of investigating the concerns, the Claimant’s line manager put her under significant pressure to withdraw her complaints. The Claimant, fearing for her job, withdrew the complaints by way of an email in which she explained that she had misunderstood the situation. The Claimant’s line manager subsequently became critical of the Claimant’s performance and put her on a performance improvement plan and imposed unreasonable targets. Ultimately the Claimant was signed off with work-related stress and raised a grievance.
The Head of Sales at Royal Mail was tasked with reviewing the Claimant’s case. She was made aware that the Claimant had raised concerns as to the employer’s malpractice, but read the Claimant’s email and accepted the line manager’s version of events which was that the Claimant had retracted her concerns on the basis of a misunderstanding. The Head of Sales subsequently dismissed the Claimant on the basis of her unsatisfactory performance.
Employment Tribunal Claim and Appeal
The Claimant, aggrieved at having been dismissed, brought a claim at the Employment Tribunal (ET) claiming that she had been automatically unfairly dismissed on the grounds of having made protected disclosures. The ET rejected this argument concluding that the Head of Sales had genuinely and reasonably believed the Claimant should be dismissed for poor performance, and not known about the protected disclosures.
The Claimant appealed against the ET’s decision. The EAT upheld the Claimant’s appeal, ruling that the decision to dismiss the Claimant had been manipulated by the line manager and tainted by unlawful motives. Hence the decision to dismiss was automatically unfair. Royal Mail appealed this decision.
Court of Appeal
The Court of Appeal (CA) allowed the appeal. It held that “it would be incoherent and unworkable if, in deciding…what beliefs were (reasonably) held or facts (reasonably) known by the employer, it were permissible to look at the mental processes of a different person.” In other words, one must focus only on whether the relevant unfair conduct can be attributed to the employer, which in this case it could not be.
The CA further stated that in an unfair dismissal claim the deliberate actions of a colleague or manager to mislead the decision-maker into dismissing an employee could form part of the decision-maker’s reasoning and be attributable to the employer, but only if the manipulator had a formal role in the decision-making process, along with that of the ultimate decision-maker, for example, as the investigator.
This case reminds us that it is ultimately the decision-maker’s motives and actions that will be taken into account when determining whether the fairness of a dismissal, however, if their decision is anyway tainted or manipulated by someone else who is responsible for the employee, there is a risk that the motivation of the other person could also be counted. In light of this, it is key for employers to take care when appointing people to manage a disciplinary or performance process and wherever possible choose people who are independent with no pre-existing knowledge of employee’s case or employment history.