A Royal Mail employee was unfairly dismissed for blowing the whistle, not for the alleged poor performance – based on false information – that the company’s HR department suggested was the reason for her dismissal, the Supreme Court has ruled.
The landmark judgment extends the scope of whistleblower protection and suggests that employers will need to ensure they have the complete information before dismissing an employee.
In October 2013, Ms Jhuti, a media specialist who worked in the postal company’s MarketReach unit, alerted her line manager about concerns that a colleague was infringing Ofcom’s guidance and company policy around Tailor Made Incentives (TMIs) – a service the company offers to organisations that use mail as an advertising medium.
In a meeting with her manager Mr Widmer, Jhuti was told that her understanding of the rules around TMIs was questionable. She believed that her job would be at risk if she decided to press further with the allegations.
After retracting her claim, Widmer told her she was failing to meet the requirements of her role and was repeatedly told that her performance was disappointing.
She claimed Widmer created a false picture of her performance and had bullied her. In January 2014, he sent an email to HR stating that she was not performing as expected and the company would need to consider “exiting” her if she did not improve.
She was placed on a six-week performance improvement plan in February 2014, of which one of the points was to disclose to Widmer all the key client contacts in the travel industry she had made during her previous jobs.
Jhuti expressed concerns about Widmer’s conduct towards her and alleged it had stemmed from her whistleblowing. In response, the HR department said Widmer was a respected employee that he would be the one to be believed and that, by reference to her performance, the company might find a way to dismiss her.
She was signed off with work-related stress in March 2014 and never returned to the role. She was later dismissed by the company, but claimed her dismissal was based on false information about her performance that was given to the HR department.
Jhuti took a claim for whistleblowing detriment and unfair dismissal to an employment tribunal. It found that, as the decision-maker had dismissed her based on a genuine belief that her performance had been inadequate, the reason for dismissal was her performance, not her whistleblowing.
The tribunal’s decision was reversed by the Employment Appeal Tribunal, which found the reason for her dismissal was the whistleblowing. However, this decision was subsequently overturned by the Court of Appeal, which held that the tribunal was only required to take only the processes of the decision-maker and the information the decision-maker had received into account.
Employers should take note of the shift in how dismissal should be decided under the 1996 Act: a fair and reasonable procedure is no longer enough. Employers will need to investigate the real causes of grievances in the workplace” – Amanda Lathia, Hunters Law
The Supreme Court has today reversed the Court of Appeal’s decision, finding that the real reason for her dismissal was the fact that protected disclosures were made.
Lord Wilson says in the Supreme Court’s judgment: “If a person in the hierarchy of responsibility above the employee determines that she (or he) should be dismissed for a reason but hides it behind an invented reason which the decision-maker adopts, the reason for the dismissal is the hidden reason rather than the invented reason.”
Emma Burrows, head of employment at law firm Trowers & Hamlins, commented: “The decision in Jhuti makes it clear that there is a distinction between discrimination and whistleblowing when it comes to decision makers and their motivation.
“In CLFIS (UK) Ltd v Reynolds (a discrimination case) the Court of Appeal held that the tribunal should focus on the thought processes and motivation of the decision-maker, and not those who provided the information to them. By contrast, where whistleblowing claims are concerned, a decision made on manipulated facts will be attributable to the employer and not to the decision-maker alone.
“This will make it harder for employers to avoid a finding of automatic unfair dismissal, especially where (as in this case) the employee withholds crucial information.
“Before deciding to terminate an employee’s employment it is best practice to liaise with the employer’s human resources department to ensure that the most complete information available is being used to inform any decision to dismiss.”
Amanda Lathia, employment solicitor at Hunters Law, said the Supreme Court’s judgment suggests that a whistleblower who suffers a detriment to the point of dismissal will be treated as unfairly dismissed even if the given decision to dismiss is deemed fair.
She said: “This brings the whistleblowing provisions under the Employment Rights Act 1996 more in line with discrimination provisions under the Equality Act 2010 where there is no distinction between a detriment and dismissal.
“Employers should take note of the shift in how dismissal should be decided under the 1996 Act: a fair and reasonable procedure is no longer enough. Employers will need to investigate the real causes of grievances in the workplace.”
A Royal Mail spokesperson said: “Royal Mail is disappointed by the Supreme Court’s judgment which relates to events that happened six years ago. Our whistleblowing policy makes it clear that whistle blowers should not suffer any detrimental treatment as a result of raising a concern. Royal Mail’s whistleblowing hotline, ‘Speak Up’ allows all of our people to raise concerns anonymously should they so wish.”