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In Royal Mail Group Ltd v Jhuti [2019] UKSC 55 the Supreme Court considered whether the motivations of an employee’s manager who engineered allegations of poor performance because she was a whistle-blower could be taken into consideration when determining whether or not she had been unfairly dismissed by an independent manager for poor performance who was unaware of her whistleblowing.

The facts in Royal Mail Group Ltd v Jhuti

On 17 September 2013 Royal Mail Group Limited (the ‘Respondent’) employed Ms Jhuti (the ‘Appellant’) as a media specialist.  She was assigned to a Mr Widmer’s team.  Her role was to promote the use of mail by businesses engaged in marketing activities.

On 16 October 2013 she was shadowing a Ms Mann.  The Appellant formed the view that Ms Mann was or might be infringing Ofcom’s guidance, reflected in the Respondent’s own policy, in respect of ‘Tailor-Made Incentives’ or TMI’s as they were known.  Because of the Respondent’s dominant position in the market Ofcom issued guidance which sought to control their use by stating that they could not be offered to existing customers in respect of repeat business.  The Appellant formed the view that Ms Mann was not complying with the guidance and the business which flowed for her improper conduct would assist her and Mr Widmer in achieving targets and securing bonuses from the Respondent.

By way of two emails to Mr Widmer dated 8 November 2013 and a third email on 12 November Ms Jhuti raised her concerns.  Then on 13 November 2013 there was a 4-hour meeting between the Appellant and Mr Widmer. Mr Widmer challenged the Appellants understanding of TMI’s and commented that if it was wrong it would impact on her position.  He observed that the Appellant was ‘on trial’ and her employment could be at risk.  During a short break the Appellant realised her position could be at risk so when the meeting resumed, she apologised repeatedly and agreed to retract the allegations.  After that, Mr Widmer made, for the first time, allegations of poor performance by the Appellant.

After the meeting the Appellant retracted the allegations by email and was then subjected to weekly intensive meetings with Mr Widmer which he said were necessary to monitor her performance.  The Appellant, who by this time was suffering from alopecia, took some time off sick and upon her return in January 2014 had to endure two further protracted meetings where Mr Widmer continued to critise her performance.  This was followed up with an e-mail to HR to the effect that if her performance did not change the Respondent would have to consider ‘exiting’ her.

On 6 February 2014 the Appellant sent an e-mail to HR expressing concern about Mr Widmer’s conduct towards her.  Then on 10 February 2014 the Appellant had a meeting with Ms Rock, Mr Widmer’s Line Manager, where she reiterated her concerns.  At that meeting Ms Rock responded by stating that Mr Widmer was a respected employee who would be believed over her.  She also stated that the Respondent might not be the right company for her and if her performance did not improve, she might be dismissed.

On 29 February 2014 the Appellant’s trial period was extended.  On 12 March 2014 her GP signed her off work for work-related stress, anxiety and depression.  She never returned to work. In April 2014 the Respondent appointed a Ms Vickers to decide whether the Appellant’s employment should be terminated.  Ms Vickers was never supplied with the Appellant’s emails dated 8 and 12 November nor with her e-mails to HR dated 6 and 25 February 2014.  In July 2014 the Appellant sent Ms Vickers about 50 lengthy e-mails alleging that she had been ‘sacked for telling the truth’.  When Ms Vickers asked Mr Widmer what she meant by this, Mr Widmer stated that the Appellant had alleged that TMI’s were being offered inappropriately, but when it was explained to her that this was not the case, she had been happy to retract the allegations.

The Appellant did not attend any meetings with Ms Vickers and by way of a letter on 21 July 2014 Ms Vickers communicated to the Appellant that she was to be dismissed from her employment because she failed to meet the required standards of performance.

The Appellant made a claim for automatic unfair dismissal for making a protected disclosure in the Employment Tribunal (the ‘ET’).

The decision of the Employment Tribunal

The ET dismissed the Appellant’s complaint of automatic unfair dismissal for making a protected disclosure.  It held that the complaint failed to satisfy section 103A of the Employment Rights Act 1996.  This states that ‘An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.’

The ET decided that the reason, or at least the principal reason, for the Appellant’s dismissal had not been the making of protected disclosures. It found that the disclosures had played no part in the reasoning of Ms Vickers who, albeit by reference to evidence, which was hugely tainted, genuinely believed that the performance of the Appellant had been inadequate and who had dismissed her for that reason.

The Respondent appealed to the Employment Appeal Tribunal (‘EAT’).

The decision of the Employment Appeal Tribunal

The EAT allowed the Appellant’s appeal.  They held that if someone in a managerial position, responsible for the employee, had manipulated a decision to dismiss her, the manipulator’s reason for dismissal could be attributed to the employer for the purposes of section 103A.  Accordingly, the reason for the Appellant’s dismissal was her having made protected disclosures.

The Respondent appealed to the Court of Appeal (the ‘COA’)

Court of Appeal

The Respondent’s appeal was allowed.  The COA stated that when required to determine the ‘reason (or, if more than one, the principal reason) for the dismissal’ under section 103A of the Act, they were obliged to consider ‘only the mental processes of the person or persons who had authority to, and did, take the decision to dismiss’.  Consequently, the COA set aside the decision of the EAT and reinstated the ET’s decision.

The Appellant appealed to the Supreme Court ‘(‘SC’).

Supreme Court

The Supreme Court identified that the key question in this case was whether, in a claim for unfair dismissal, can the reason for the dismissal be other than that given to the employee by the decision-maker.  Whilst the courts need generally look only at the reason given by the decision-maker, where the real reason is hidden from the decision-maker behind an invented reason, the Court must penetrate through the invention to find it.

Consequently, they went on to hold that yes, if a person in the hierarchy of responsibility above the employee determines that they should be dismissed for a reason, but hides it behind an invented reason which the decision-maker then adopts, the reason for the dismissal is the hidden reason rather than the invented reason.

The part of the COA order that allowed the Respondent’s appeal was therefore set aside, and the EAT’s order was restored.

Our solicitors’ views on the case of Royal Mail Group Limited v Jhuti

Sacha Barrett, a Senior Associate in the employment department at Redmans, made the following comment on the case: ‘The Supreme Court has confirmed that when considering the reason for a dismissal, the Employment Tribunal will normally only need to consider the subjective mental thought process of the decision-maker when reaching the decision to dismiss. However, if there is evidence that the true reason for dismissal is one which has been hidden from the decision-maker behind an invented reason, the Employment Tribunal must penetrate through the fictitious reason to determine what was the real reason for the dismissal was.’

The decision of the Supreme Court in Royal Mail Group Limited v Jhuti [2019] UKSC 55 can be found here.

About

Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk. Redmans have offices in Richmond, Chiswick, Hammersmith, Fulham, Kingston, Wimbledon, Ealing, Kings Cross and Marylebone (meetings strictly by appointment only).

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