Supreme Court on hidden dismissal motive
Monday 9th December 2019
The SC has held in Royal Mail Group Ltd v Jhuti that dismissal was automatically unfair, even though the decision maker was unaware of the real reason for dismissal. This overturns the CA decision that only the decision maker’s motivations are relevant in establishing the reason for dismissal.
Ms Jhuti was employed by Royal Mail as a Media Sales Specialist. During her probationary period, she made protected disclosures to her line manager. The probationary period was subsequently extended but Ms Jhuti was ultimately dismissed. During the disciplinary proceedings, Ms Jhuti’s line manager deliberately misled the investigating manager about the circumstances surrounding the alleged protected disclosures and Ms Jhuti was unable to provide the missing context, as she was off sick because of the situation with her line manager. Consequently, the investigating manager considered that the protected disclosures were irrelevant and dismissed Ms Jhuti for poor performance based on evidence provided.
Ms Jhuti argued before the ET that she suffered unlawful detriment as a result of having made protected disclosures and also claimed automatic unfair dismissal. The concerns raised by Ms Jhuti were held by the ET to constitute protected disclosures and she was found to have suffered numerous unlawful detriments, including a course of bullying and harassment, as a result of having made them.
However, the ET held that the protected disclosures had not been the reason for her dismissal, considering that they had not influenced the investigating manager’s decision to dismiss. The EAT disagreed, holding that the reasons and motivations of both the line manager and the investigating manager were relevant and could be attributed to Royal Mail, making the dismissal automatically unfair. The CA reversed the EAT’s decision, holding that the ET is required to consider only “the mental processes” of those taking the decision to dismiss.
The SC disagreed. Adopting a purposive approach, the SC considered that Parliament had clearly intended that where the real reason for dismissal was whistleblowing, the automatic consequence should be a finding of unfair dismissal. Ordinarily, it will only be necessary to examine the decision maker’s reasons. However, where someone determines that an employee should be dismissed for one reason, but hides it behind another, which is then adopted by the decision maker, the hidden reason is the reason for dismissal.
The SC considered that if this was limited to a person given line management responsibility by the employer, there is “no conceptual difficulty attributing to the employer that person’s state of mind rather than that of the deceived decision maker”. Where the real reason is hidden behind an invented reason, the SC found it “the court’s duty to penetrate through the invention rather than to allow it also to infect its own determination”.
All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.