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Jackie Denham explores whether a dismissal is still unfair even if the decision maker was unaware of any whistleblowing.

The law protects employees from dismissal, and both employees and workers from being subjected to a detriment, where they ‘blow the whistle’ on wrongdoing at work.  To benefit from that protection, there must be a ‘qualifying disclosure’ and that disclosure must be in the ‘public interest’.  In addition, if the main reason for an employee’s dismissal is the fact that they have blown the whistle, that dismissal will be automatically unfair.

The Supreme Court (SC) has recently determined that an employer could still be liable for automatic unfair dismissal if a protected employee is terminated even if the decision maker was unaware that employee had made a protected disclosure.

The case concerned Ms Jhuti, who was employed by Royal Mail.  During her probation period, Ms Jhuti blew the whistle on her colleague whom she suspected to be in breach of the Ofcom rules.  In response, her manager subjected Ms Jhuti to harassment, bullying and allegations that her performance was disappointing.  Ultimately Ms Jhuti was dismissed but as a result of her alleged poor performance.  The manager, who took the decision to dismiss her, was unaware of her protected disclosures and relied on her direct manager’s assessment of her poor performance.

The Employment Tribunal (ET) decided that Ms Jhuti had made protected disclosures and, as a result, she has been subjected to a detriment.  However her claim for unfair dismissal failed as the ET held that the main reason for dismissal had not been her whistleblowing.  It held that the disclosures played no part in the decision-maker’s mind.

The case was appealed all the way to the SC where it was held that if a person in the hierarchy of responsibility decides that an employee should be dismissed for an unfair reason but hides that reason in order to manipulate the dismissal, it is open for the Tribunal to determine that the actual reason for the dismissal is the hidden reason.  This is the case even if the dismissing manager acted in good faith.  The manager misled the decision-maker by failing to disclose the full picture surrounding Ms Jhuti’s disclosures.

The SC accepted that the facts of this case are extreme and would not be common.  For the SC it seemed unjust for the Royal Mail to evade liability for unfair dismissal on the basis of a technical argument that the manager who was acting unlawfully did not himself take the ultimate decision to dismiss.