December 5, 2019

Whistleblowing and managing dismissals

A recent Supreme Court judgment for employment law in the case of Ms Jhuti v Royal Mail Group Limited has potentially strengthened the protections afforded to employees who make a protected disclosure (known as whistleblowing) This also has implications regarding the processes to be adopted by employers when investigating potential dismissals.

Case Background

Ms J made a protected disclosure to her line manager stating that her colleagues were breaching Ofcom regulations by offering customer incentives. Her line manager was dismissive of these concerns and immediately began a campaign of questioning Ms J’s performance. There was evidence that the actions of the line manager were inspired by Ms J’s original whistleblowing and were invented by the line manager as a pretext for justifying a subsequent dismissal.

Allegations of Ms. J's poor performance were communicated from her line manager to the HR department, who initiated an investigation leading ultimately to her dismissal. The HR manager was not aware of the original whistleblowing or Ms J’s allegation that her line manager was bullying her and inventing allegations of poor performance. In due course Ms J was dismissed by the HR “decision maker” who acted in good faith and dismissed on grounds of poor performance.

Having been employed for under two years (the usual qualifying period for bringing a routine unfair dismissal claim) Ms. J nevertheless brought Tribunal proceedings, alleging she had been subjected to detrimental treatment on grounds of whistleblowing and automatically unfairly dismissed due to her protected disclosure.

Decisions

Ms J brought Employment Tribunal proceedings which were then appealed to the Employment Appeal Tribunal, Court of Appeal and eventually the UK Supreme Court.

She lost her case in the Employment Tribunal on the basis that the decision maker had dismissed her due to a genuine belief her performance had been inadequate. Therefore, this was the de facto reason for her dismissal, not whistleblowing.

The Employment Appeal Tribunal (EAT) reversed this decision, holding that the reason for dismissal was the making of a protected disclosure. The Court of Appeal then reversed this decision, again stating that the Tribunal was only obliged to consider the mental processes of the decision maker.

Supreme Court Judgment

Supreme Court allowed Ms.J's appeal of their decision. The Court ruled that when an employee is dismissed following a protected disclosure the dismissal is still capable of being ruled unfair, even though the person making the decision to dismiss was unaware whistleblowing was the real reason for the dismissal. The Supreme Court went further and stated that in such cases the Courts and Tribunals must fully investigate the real reason for the dismissal and look beyond the conclusions of the HR Manager handling the dismissal.

What does this mean for Employment Law?

In addition to arguably extending protection for whistle-blowers this judgment is a warning to employers that they must thoroughly investigate the real reasons for a proposed dismissal. Failure to do so may render a subsequent dismissal unfair even in circumstances where the decision maker acted in good faith.

If you require employment law advice, contact David Dixey on 01376 320 456 or email dd@holmes-hills.co.uk.

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