The potential complications of whistleblowing

Catriona Aldridge reports on the implications of a recent Supreme Court ruling and offers guidance for employers

The potential complications of whistleblowing

Does a decision-maker need to be aware of the whistleblowing allegations before an employee can successfully claim automatic unfair dismissal? No, said the Supreme Court in Jhuti v Royal Mail

Where an employee more senior than the claimant determines that the claimant should be dismissed for blowing the whistle (the hidden reason) but invents another reason for dismissal (the invented reason), which a separate dismissing manager adopts, the reason for dismissal is the hidden reason, rather than the invented reason. The fact that the dismissing manager was not aware of the hidden reason does not absolve the employer of liability where automatic unfair dismissal is concerned.  

A short period into her new role as a media specialist for Royal Mail’s sales division, Ms Jhuti noticed what she thought were irregularities in the way that customers were being offered incentives. She believed these were contrary to regulatory guidelines and reported her concerns to her manager.

Jhuti’s relationship with her manager became strained and she was subject to continuous criticism about her performance. Her case was assigned to an HR investigation officer to conduct a review. Jhuti’s manager did not inform the HR investigator of Jhuti’s concerns about the irregularities. 

Although Jhuti informed the HR investigator in writing that she was “being sacked for telling the truth”, the HR investigator accepted the manager’s assurances and did not undertake a detailed investigation into the matter. Ultimately, the HR investigator decided to dismiss Jhuti on performance grounds. Jhuti claimed she had been automatically unfairly dismissed for making protected disclosures.

The Court of Appeal had previously held that it was only the thought processes of the person(s) authorised to dismiss that should be considered – in Jhuti’s case, the HR investigator. However, the Supreme Court determined that its role was to identify the ‘real reason’ for dismissal. In Jhuti’s case, the real reason for her dismissal was the fact she had raised concerns about irregularities, which led to her manager inventing performance concerns that ultimately led to her dismissal. 

On the face of it, this case is a worrying one for dismissing managers. They will be concerned that their decision-making may inadvertently give rise to an automatic unfair dismissal, despite the fact they were unaware of any protected disclosure having been made. Given the similarity of the statutory language relating to automatic unfair and ordinary unfair dismissal claims, there is also concern that a similar approach will apply to ordinary unfair dismissal claims. 

Practical steps can be taken by dismissing managers to mitigate against this, including:

  • Checking if protected disclosures have been raised. A clear whistleblowing policy will assist with this.
  • Breaking down the events leading to the potential dismissal will help, asking what has motivated that action at each stage.
  • Preparing a chronology is also key in identifying whether the making of a potential protected disclosure has triggered any negative action, which could be a detriment for the purposes of the whistleblowing legislation and ultimately lead to dismissal. 

While dismissing managers will need to be alive to the issue that a ‘rogue’ manager may attempt to conceal disclosures that have been made to them in the context of an investigation, in practice, such a situation is extreme. Jhuti’s case was also likely aggravated by the fact that she was too unwell to meet the HR investigator face to face. Had she done so she may have been better able to emphasise the seriousness of her concerns. 

Catriona Aldridge is a senior associate in the employment team at CMS