Article posted in Daniel Barnett’s Employment Law Bulletin, 23 October 2017
Is it a whistleblowing dismissal if the person who made the decision to dismiss was ignorant of the protected disclosure, and was deliberately misled by the employee’s line manager to believe the reason was poor performance?

No, held the Court of Appeal in its judgment in Royal Mail Ltd v Jhuti.

Ms Jhuti was an employee at Royal Mail who made a protected disclosure to her line manager. During a dismissal process, the line manager, motivated by the protected disclosure, deliberately misled the investigating manager so that she dismissed Ms Jhuti for poor performance. The EAT held that both the reason and motivation of the decision maker and the line manager had to be taken into account, and could be attributed to their employer.

In reversing the EAT’s decision, the Court of Appeal held that in determining the “reason for the dismissal”, the tribunal is only obliged to consider the mental processes of the person(s) authorised to, and who did, take the decision to dismiss (being the mind of the employer). Underhill LJ raised some doubt about whether, in cases of manipulation, the position would be different if the CEO deliberately manipulated the dismissal decision.

Underhill LJ stressed that unfair dismissal cases require unfairness by the employer. Unfair conduct by individual managers or colleagues is immaterial unless it can properly be attributed to the employer.

In principle, Ms Jhuti is not precluded from recovering compensation for dismissal consequent on unlawful detriment but this is for the employment tribunal to decide.

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