Whistleblowing revisited
Protection for whistleblowers under the Public Interest Disclosure Act 1998 is being applied in ever wider circumstances (see our previous articles here and here). At our recent Employment Law Update workshops, we discussed employers’ concerns around potential whistleblowing claims, given that there is no minimum length of service required for an employee to bring a whistleblowing claim, and no cap on the amount of compensation that the Employment Tribunal can award if the employee’s claim is successful.
In this article, we will consider the implications for employers of a recent whistleblowing case (Royal Mail Group Ltd v Jhuti). This case involved a Royal Mail employee, Ms Jhuti, who ‘blew the whistle’ by making disclosures about suspected breaches of both the Royal Mail’s rules and Ofcom’s rules.
Ms Jhuti had emailed her manager about her concerns and met with him to discuss them. Her manager, however, suggested that Ms Jhuti should admit that she had made a mistake, and write a retracting email, which she did.
Following the meeting with her manager, Ms Jhuti was required to attend very time consuming weekly meetings with him to monitor her progress, and he gave her an “ever changing unattainable list of requirements”. Ms Jhuti’s manager told HR that they would need to look at ‘exiting’ Ms Jhuti if she did not improve, and he also put her on a performance plan.
Ms Jhuti complained to HR that she was being harassed and bullied as a result of her disclosures, and she was signed off sick by her GP. The Royal Mail offered her a termination package, which she rejected.
A senior member of staff, Ms Vickers, was appointed to review Ms Jhuti’s position. Ms Vickers did not see any of Ms Jhuti’s emails about her disclosures, but did speak to Ms Jhuti’s manager who told her that Ms Jhuti had misunderstood the situation and he showed her a copy of Ms Jhuti’s retracting email. Ms Vickers made the decision to dismiss Ms Jhuti on the grounds of poor performance.
Ms Jhuti’s appeal against her dismissal was rejected and she brought a claim in the Employment Tribunal, arguing that she had been automatically unfairly dismissed because she had ‘blown the whistle’.
The Employment Tribunal noted that it was strange that Ms Jhuti had been offered a year’s pay to leave, when she did not have sufficient service to bring a claim for unfair dismissal, she was considered a poor performer and had yet to pass her probationary period. The Employment Tribunal found it more likely that the management were concerned about the issues she had raised.
The Employment Tribunal found that Ms Jhuti had been bullied and harassed by her team leader because she had ‘blown the whistle’, but, Ms Vickers had genuinely believed she was dismissing Ms Jhuti on the grounds of poor performance and had not seen the details of Ms Jhuti’s disclosures. (It was not clear why Ms Vickers had not seen Ms Jhuti’s emails to HR).
Ms Jhuti appealed to the Employment Appeal Tribunal (EAT). The EAT held that even where the person making the decision was not aware of the true facts, the decision can be attributed to the employer if the decision maker is manipulated by someone in a managerial position, who is responsible for the employee, and who does know the true facts. The EAT found that Ms Jhuti’s manager had lied to Ms Vickers and withheld Ms Jhuti’s emails outlining her concerns.
The EAT held that Ms Jhuti’s manager’s motivations should be taken into account because he had lied to and misled Ms Vickers, and, once his motivation was taken into account, it was inevitable that Ms Jhuti would be dismissed and she was dismissed on the grounds of the protected disclosures she made to her manager.
It may seem harsh that an employer can be found to have automatically unfairly dismissed an employee for whistleblowing, where the person who made the decision to dismiss did so based on other reasons and where another employee had been withholding information and misleading the decision maker, as Ms Jhuti’s manager did in this case. However, Ms Jhuti had raised her concerns with HR and it was not clear why, in this case, that information was not shared with Ms Vickers.
Whilst this case did not deal with a situation where the person manipulating the decision maker is not in a managerial position and responsible for the employee, it does highlight the importance of dealing with potential whistleblowing issues appropriately, regardless of an employee’s length of service, and ensuring that whistleblowing policies are robust.
We can help with creating or updating a whistleblowing policy, as well as advising on any particular situation. Please contact any member of the Pure Employment Law team for assistance (01243 836840 or [email protected]).