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Invented or hidden – what was the real reason for dismissal?

Posted on 10 January 2020

Invented or hidden – what was the real reason for dismissal?

In the landmark ruling of Royal Mail Group Ltd v Jhuti, the Supreme Court has determined that in circumstances where an employee is dismissed for a reason invented by a manager that the decision-maker unwittingly goes on to adopt, the reason for the dismissal is the hidden reason, not the invented reason.

Facts of the case

Ms Jhuti, a new joiner at the Royal Mail Group, made protected disclosures when she discovered that a colleague was acting in what she thought was a breach of Ofcom guidance and company policy, concerning offers of 'tailor-made' incentives. The business which flowed from the alleged wrongdoing assisted her colleague in achieving targets and securing a bonus and it also indirectly benefitted the team leader, Mr Widmer, who was Ms Jhuti's manager.

After she made the protected disclosures, Mr Widmer met with Ms Jhuti. The meeting was over four hours long and it was made clear to Ms Jhuti that her allegations were problematic for the business and she understood that if she were to press them further, her employment would be at risk. Mr Widmer suggested that she retracted the allegations. Ms Jhuti was then placed on a performance management plan and weekly meetings with Mr Widmer were timetabled. These intensive meetings were ostensibly to monitor Ms Jhuti's performance. Ms Jhuti was repeatedly criticised and told that she was falling short of expected standards.

Ms Jhuti started to suffer from stress and developed alopecia. She raised concerns with HR about Mr Widmer's treatment of her and that she thought it stemmed from her protected disclosures. The response from HR made it clear to Ms Jhuti that Mr Widmer was a respected employee and that he would be believed over her.

Ms Jhuti was eventually signed off sick. A month later, the company started a formal process to determine whether to terminate her employment for poor performance. A new manager, Ms Vickers, who had had no previous dealings with Ms Jhuti was appointed to oversee the process. Ms Vickers was not provided with any of Ms Jhuti's emails to the company in which she made protected disclosures or raised concerns about her treatment. However, she did see the email in which Ms Juhti had retracted the allegations.

Ms Jhuti was too ill to attend any of the meetings but did submit written evidence on her behalf. It was noted that this written evidence was markedly less coherent as compared to her previous dealings with the company. Ms Vickers decided to dismiss Ms Jhuti on the basis of poor performance – Ms Jhuti had been subject to Mr Widmer's performance plan for five months but had failed to reach the standards set by him under that plan. Ms Vickers felt it was unlikely that Ms Jhuti would achieve such standards in the future and made the decision to dismiss on that basis.  

Whistleblower protections

The law protects whistleblowers such as Ms Jhuti in two distinct ways. Firstly, they are protected from being dismissed if the reason or principal reason is the fact that they have blown the whistle (i.e. made a protected disclosure) to their employer. If so, their dismissal will be automatically unfair. Secondly, they are protected from being subjected to a detriment by their employer and/or their colleagues on the grounds that they have blown the whistle to their employer.

In Jhuti, the Supreme Court was considering the first protection. The Court found that if a person "in the hierarchy of responsibility" above the employee (Mr Widmer in this case) had wanted the employee to be dismissed for a certain reason (here, the whistleblowing), but that this reason should be hidden behind an invented reason (here, inadequate performance) and the decision-maker (Ms Vickers) had then unknowingly adopted that invented reason, "it is the Court's duty to penetrate through the invention rather than allow it also to infect its own determination".

As a result, the hidden reason was attributed to the employer and Ms Jhuti's dismissal was ruled automatically unfair - the principal reason for her dismissal was the fact that she had blown the whistle to her employer.

Wider implications

Although the facts of Jhuti centred on whistleblowing, the Supreme Court's ruling will have ramifications for ordinary unfair dismissal cases as well. The facts of Jhuti are unusual and involve Mr Widmer behaving dishonestly and Ms Jhuti being unable to defend herself in person. However, it would be unwise to view this case as so unique that it has no wider implications. It is not unfeasible to imagine circumstances where an actual reason for an employee's dismissal is significantly downplayed and a 'lawful' reason is pushed forward by a "rogue" manager wishing to see the employee in question dismissed. For example, a manager wishing to see an employee dismissed for a trivial personal reason, which the employer could not justify as fair, could attempt to invent a redundancy situation in order to dishonestly convince another manager to terminate the employee by alternative means. Using the Supreme Court's reasoning in Jhuti, a Tribunal would be able to penetrate through the invented redundancy to the actual unfair dismissal reason underneath, despite the dismissing manager not being aware of it.

Avoiding the procedural failings in Jhuti

A key issue in the treatment of Ms Jhuti was the failure to properly consider her protected disclosures and complaints about Mr Widmer's treatment both prior to and during the dismissal process. This oversight was particularly pertinent as Ms Jhuti was not present at the dismissal meetings to give her own account. It is possible that Ms Vickers could have done more to satisfy herself as to the real reason for dismissal. In order to seek to avoid such situations arising, employers should ensure that they have properly trained all managers who may make dismissal decisions. It is important that managers understand that they are expected to look at evidence that supports both the proposed reason for dismissal and the employee's position. If the evidential position is scant, managers should attempt to obtain more evidence, especially if the employee is unable to do so themselves.

Jhuti also highlights the importance of good whistleblowing policies and demonstrates what can happen when a manager acts deceitfully and HR automatically protects them, rather than investigate the matter. Proper training on how to spot and deal with protected disclosures is paramount for both managers and HR professionals. Given that there is no service requirement for bringing a whistleblowing claim and potential compensation is uncapped, anyone receiving a whistleblowing complaint from an employee is well advised to take it seriously.

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