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09 Dec 2019

Whistleblowing dismissal: Supreme Court looks at the real reason behind a dismissal

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If a dismissing officer relies, in good faith, on a fake reason for dismissal should the court look beyond that fake reason?

The short answer is yes, according to the recent Supreme Court decision in Royal Mail Group Ltd v Jhuti. The Supreme Court held that where the reason for a dismissal given in good faith by the dismissing officer turns out to be a fictitious reason (due to a manager manipulating the facts), it is the hidden reason (rather than the fictitious reason) that is the true reason for a dismissal.

Facts

  • Ms Jhuti blew the whistle by making a protected disclosure to her line manager.
  • She was persuaded by her line manager that she had made a mistake, and on his advice retracted her disclosure.  The line manager then subjected Ms Jhuti to a rigorous performance management process with goals she could not realistically achieve.  She subsequently went on sick leave.
  • Ms Jhuti was dismissed for poor performance by a separate manager who didn’t know the background and who relied on the line manager’s assurances that he had dealt with Ms Jhuti’s concerns (i.e. those raised in the protected disclosure) - which he claimed were, in any event, caused by a misunderstanding by Ms Jhuti.
  • Ms Jhuti brought a claim for automatic unfair dismissal by reason of making a protected disclosure and a claim she was subject to detriment as a result of the disclosure.

Issue

  • The key issue was whether the principal reason for dismissal was the fabricated performance reason or the genuine reason of making a protected disclosure?

Judgment

  • The Supreme Court (reversing the decision of the Court of Appeal) held that in searching for the reason for a dismissal, normally one looks only at the reason given by the decision-maker.  However, in instances where the decision maker is blind to the real reason (because it is hidden behind a fictitious reason), it is the “court’s duty to penetrate through the invention rather than to allow it also to infect its own determination”. 

Practical takeaway points

  • Decision-makers should ensure they are up to speed on all of the relevant background when dismissing an employee, and should not be afraid to question any (or all) of the information being given to them on which to base the decision.
  • Employers should review their current policies to make sure that they have robust whistleblowing and anti-victimisation policies in place and that such policies are followed by their staff.
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