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It is well known that workers who make “protected disclosures” (i.e. “blow the whistle”) must not suffer any detrimental treatment from their employer because they have made such disclosure. If they are dismissed for doing so, this will be an automatically unfair dismissal. This is a technically complex area of law, and there are many pitfalls which employers can fall into in relation to how they respond to whistleblowing. The recent Court of Appeal decision of Royal Mail Ltd v Jhuti [2017] EWCA Civ 1632 is therefore a welcome one for employers, as it affirms the principle that the dismissal of an employee who has made a protected disclosure may  be fair if the dismissing manager is shown to be unaware of any protected disclosures.  The motivations of other employees who may seek to subject an employee to disadvantage because of their whistle-blowing  are not to be attributed to the Employer  provided that  any disciplinary or capability process is conducted in a fair way independently of colleagues with such unlawful intentions.

The facts of the case, in brief, were that Ms Jhuti raised concerns with her manager that other members of her team were breaching Ofcom standards in the course of their work. Her manager pressured her to withdraw the allegations and threatened her job, claiming that she had misunderstood what was happening. After withdrawing her allegations at his urging, Ms Jhuti’s manager subjected her to bullying and harsh and unreasonable targets and requirements. Ms Jhuti raised a grievance about these matters, and was signed off with stress by her GP.

During her absence, the Royal Mail appointed another manager, Ms Vickers, who had no connection with Ms Jhuti, to review her employment. Ms Vickers was given information about Ms Jhuti’s performance, but was not told of her allegations or her grievance. Ms Jhuti was too unwell to attend a meeting with Ms Vickers but sent her emails which referred briefly to her allegations without going in to them in detail. Ms Vickers raised these with Ms Jhuti’s line manager, but he assured her that this had been a misunderstanding and provided her with a copy of Ms Jhuti’s email in which she withdrew her allegations. Ms Vickers proceeded to dismiss Ms Jhuti for performance related reasons.

As first instance, the Employment Tribunal decided that Ms Jhuti had been treated detrimentally by her line manager because of her whistle-blowing. However, she had not been automatically unfairly dismissed by Royal Mail because Ms Vickers was not motivated by the whistleblowing but rather her belief that Ms Jhuti was a poor performer when deciding to dismiss her.  On appeal the Employment Appeal Tribunal disagreed. They felt that Ms Jhuti’s line manager had manipulated the information passed to Ms Vickers and influenced her decision making, and that therefore Ms Jhuti’s dismissal was automatically unfair because it was on grounds of whistle-blowing.

The Court of Appeal reversed this decision. They decided that, in order to determine the reason for Ms Jhuti’s dismissal, it was necessary to look only at the mental processes of the person actually authorised by the employer to make the decision as to whether to dismiss, in this case, Ms Vickers. They noted that this did not mean that Ms Jhuti’s line manager had not treated her unfairly by deliberately concealing emails about the whistleblowing. However, this of itself did not mean that the employer had dismissed on grounds of whistle-blowing. Importantly however the court suggested that Ms Jhuti may be able to establish that her dismissal was a consequence of her line manager’s whistle-blowing related detrimental treatment and claim damages from the Royal Mail on the ground that it was vicariously liable for the conduct of the line manager. The case was sent back to the Tribunal to decide this point.

It is also interesting to note that the court considered the liability of employers in different scenarios where attempts are made to obscure or distort the truth. For example, if the line manager of an employee misled the decision making manager, but was not directly involved in making the decision to dismiss (as was the case here), then his actions could not be attributed to the employer. However, if the person concealing or distorting the evidence were directly involved in the investigation process, and this was the basis for dismissal, then there would be a ‘strong case’ for imputing the motivation and knowledge of this investigating manager to the employer, even if they were not the ones taking the actual decision to dismiss. Similarly, the Court suggested that if the decision to dismiss was manipulated by someone who is sufficiently senior in the hierarchy of the employer, this could also be potentially attributed to the employer.

The issues in this whistle-blowing case are similar, although not identical, to the considerations in direct discrimination cases, where courts and tribunals require to determine whether the reason for the treatment of the individual was discriminatory. It is therefore useful to also take note of the recent Employment Appeal Tribunal decision of Commissioner of Police of the Metropolis v Denby UKEAT/0314/16. In that  case it was decided that that in situations where one individual ostensibly makes the decision but is heavily influenced by another individual with discriminatory motives so that there are effectively joint decision makers, the employer cannot escape responsibility  for the discriminatory motivation of one of the decision makers. Although the principles in discrimination cases are slightly different to whistleblowing cases, it is easy to see how this ‘joint decision maker’ principle could have been  applied in Royal Mail if Ms Jhuti’s line manager had influenced Ms Vickers in her decision as to whether to dismiss.

In practice, employers should ensure, where possible, that any disciplinary or capability procedures are carried out by managers who are different to those who have been involved in investigations or grievances of the employee in question. This will help to show that the decision makers were independent and acted fairly and without undue influence of anyone who may seek to manipulate the process for unlawful reasons.  Clear records of the rationale for decisions should be kept, and employers should make clear that any manager carrying out an investigation or formal process should report any suspicions that an employee has been subject to detrimental treatment due to whistleblowing or discrimination so that the situation can be rectified.

If you have any questions about the issues raised above, please do not hesitate to contact a member of the Stronachs Employment team.

Annika Neukirch, Solicitor

Chambers UK 2018

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