Whistleblowing while you work
Last July, we reported on the case of Ms Jhuti v Royal Mail. Ms Jhuti ‘blew the whistle’ to her line manager by making disclosures about suspected breaches of the Royal Mail’s rules and Ofcom’s rules. Ms Jhuti’s line manager put her on a performance plan and told HR they would need to look at ‘exiting’ her. Ms Jhuti was dismissed, however the manager who dismissed her was not aware of Ms Jhuti’s whistleblowing.
The dismissal of an employee is automatically unfair if the reason (or principal reason) for their dismissal is that they have made a protected disclosure, i.e. they have ‘blown the whistle’. As we have previously reported, whistleblowing claims should be of concern to employers, because there is no minimum length of service required for an employee or worker to bring such a claim, nor any cap on the compensation that can be awarded – in contrast to ordinary unfair dismissal claims, which require 103 weeks’ service and where the maximum compensatory award is capped.
The Employment Tribunal found that the manager who made the decision to dismiss Ms Jhuti had genuinely believed she was dismissing her on the grounds of poor performance. The manager’s decision was not motivated by Ms Jhuti’s whistleblowing (nor was it based on the line manager's motivation), therefore Ms Jhuti was not automatically unfairly dismissed for whistleblowing.
When the case went to the Employment Appeal Tribunal however, it was held that the dismissal was automatically unfair because even where the person making the decision was not aware of the true facts, the decision could 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.
Royal Mail’s appeal against the EAT’s decision was recently heard by the Court of Appeal, who had to decide if Ms Jhuti could be automatically unfairly dismissed by a manager who was not aware of the protected disclosures she had made to another manager.
The Court of Appeal decided that the dismissal had been fair. It was only what the decision-maker actually knew that was key, not what knowledge should be attributed to them.
The judgment set out four different scenarios of ‘manipulation’ cases, only two of which the Court considered could lead to the manipulator’s motivation being attributed to the employer. First, in cases where the decision-maker is manipulated by a manager who has some responsibility for the investigation, it is possible that the motivation and knowledge of the manager could be attributed to the decision-maker, even if the decision-maker does not share the motivation or knowledge. Second, in a situation where the manipulator is at a very senior level (e.g. the CEO), and deliberately manipulates the evidence, their motivation could be attributed to the employer.
In the other two scenarios which the Court described, the manipulator’s motivation could not be attributed to the employer - cases where the manipulator misleads the decision-maker, but has no responsibility for the employee, and situations (like the Jhuti case) where the manipulator does not have responsibility for the dismissal.
Whilst this is a welcome decision for employers, they should still be alert to situations where manipulation by an employee could be attributed to the employer. Even if an employee in such a case could not succeed in a claim for automatic unfair dismissal against the employer, they could potentially bring a claim on the basis that they have been subjected to a detriment, by a fellow employee, for blowing the whistle - and the employer could be found liable. Although, in detriment cases there is a potential defence if the employer can show that they took all reasonable steps to prevent the detrimental treatment.
Our advice is to make sure your whistleblowing and disciplinary procedures are up to date, and that your managers are properly trained on them – we can assist with both, just get in touch.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or firstname.lastname@example.org).