The fairness of a dismissal depends on what the decision maker knew at the time of dismissal.
In the case of Royal Mail Ltd v Jhuti, the Court of Appeal has confirmed that an employee could not have been automatically unfairly dismissed for making a protected disclosure if the person dismissing the employee was not aware, or was ignorant, of such disclosures.
This was the case even in circumstances where the decision maker was deliberately misled as to the reason for dismissal.
- An employer cannot be deemed to have knowledge of all facts known to employees when deciding whether to dismiss.
- As long as there has been a fair and thorough investigation, only the facts and motivation of the decision maker will be relevant in determining whether a dismissal is fair.
Ms Jhuti was employed by Royal Mail as a media specialist. In 2013, she reported to her line manager that she believed another employee was acting in breach of both Royal Mail’s internal rules and the requirements of its regulator, Ofcom. After reporting this, Ms Jhuti’s line manager began to treat her differently. She was, for example, required to attend weekly progress meetings and a performance plan was set despite there being no evidence of genuine performance concerns. She was also told to send an email retracting her allegation against the other employee. Concerned about the possibility of losing her job if she did not do so, she complied with her line manager’s request and sent an email retracting her allegation.
Ms Jhuti subsequently raised a grievance in relation to her line manager’s actions, before being signed off on sick leave.
Another manager was appointed by Royal Mail to review Ms Jhuti’s employment. This manager did not see the grievance, nor did she interview Ms Jhuti. She did, however, receive emails from her in which she referenced the concerns she had previously raised. After querying what these concerns were with Ms Jhuti’s line manager, she was told that whilst Ms Jhuti had raised an allegation against another employee she had since retracted this allegation on the basis that there had been a misunderstanding. The manager believed this account, and subsequently dismissed Ms Jhuti for poor performance. Ms Jhuti brought a claim in the Employment Tribunal for automatic unfair dismissal in connection with her having made a protected disclosure.
The Employment Tribunal held that Ms Jhuti had made a protected disclosure when she reported her concerns to her line manager, and had subsequently been subjected to detrimental treatment as a result. The Tribunal dismissed her claim for unfair dismissal, however, holding that the manager’s decision to dismiss was not motivated by the protected disclosure – it was based on what the manager reasonably understood to be poor performance grounds. Ms Jhuti appealed to the Employment Appeal Tribunal who reversed the Tribunal’s decision and found the dismissal to be unfair. It held that a decision made by a person in ignorance of the true facts, which is manipulated by someone in a managerial position responsible for an employee and who is in possession of the true facts, can be attributed to the employer. The dismissal was therefore held to be automatically unfair.
Royal Mail appealed to the Court of Appeal, arguing that when determining the reason for dismissal, only the mental processes of the decision maker in coming to their decision to dismiss should be considered. The Court of Appeal accepted this argument, holding that any motivation on the part of the line manager to dismiss Ms Jhuti on the basis of her having made a protected disclosure could not be attributed to the decision maker who knew nothing of the protected disclosure. It therefore followed that it also could not be attributed to Royal Mail. What Royal Mail reasonably believed when dismissing Ms Jhuti had to be determined by reference to what the decision maker actually knew at the time of dismissal. She was therefore found not to have been unfairly dismissed.