News Updates

Protected disclosures – knowledge of decision maker

Tuesday 24th October 2017

The CA has held in Royal Mail Ltd v Jhuti that only the decision maker’s reasons and motivations were 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, being 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 has 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. It went on to explain that the right not to be unfairly dismissed depends on their being unfairness on the part of the employer and that the conduct of individual colleagues or managers is “immaterial unless it can properly be attributed to the employer”.  Although he did not rule on this, Underhill LJ did not discount the possibility of taking into account the motivations of others where they are sufficiently senior individuals “at or near the top of the management hierarchy” and are involved in deliberate manipulation, such as a CEO.

All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.