The Supreme Court has today upheld a ruling in favour of a former Royal Mail employee who was dismissed from her role following an attempt to call out alleged bad practice, setting a precedent legal experts said increases protection for whistleblowers.
Ms Jhuti, who worked for Royal Mail as a media specialist from September 2013 until her dismissal in July 2014, claimed she was subjected to an arduous performance management process that led to her dismissal after she made a protected disclosure to a line manager.
In November 2013, she raised concerns in an email to her manager that an employee was breaching Ofcom regulations in their use of customer incentives, by allegedly making “improper” offers to repeat customers in breach of company policy.
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A few days after making the disclosure, Jhuti had a meeting with the manager where she was led to understand that were she to press the allegations further, her employment would be at risk. She rescinded her claims.
The court heard that following the disclosure, her manager sent multiple emails to HR about her performance, saying he was monitoring her. One such email suggested that if her performance did not improve, the business would need to consider “exiting” her.
The company appointed another manager to review evidence and make a decision as to whether Jhuti’s employment should be terminated. This manager was not provided with emails from Jhuti raising concerns about her manager’s treatment of her following the disclosure, and decided to dismiss Jhuti after an investigation.
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An employment tribunal initially rejected Jhuti’s claim for unfair dismissal on the grounds that the firing manager was not aware a protected disclosure had been made and that, albeit through tainted evidence, they genuinely believed Jhuti’s performance had been inadequate.
However, the Employment Appeal Tribunal (EAT) disagreed, holding that it did not matter that the person making the decision to dismiss was unaware of the protected disclosure and that the employer was still liable.
The Court of Appeal overturned the EAT’s judgement on the grounds that even though the person who made the decision to dismiss did so for reasons of performance – and was not fully aware that Jhuti’s manager’s conduct was potentially the result of her attempt to make protected disclosures – the dismissal was still unfair on the grounds of whistleblowing. The Supreme Court has upheld this decision.
In upholding Jhuti’s appeal, the Supreme Court has ruled that, when an employee is dismissed following a protected disclosure, that dismissal will still be ruled unfair, even when the person taking the decision to dismiss is unaware that whistleblowing is the reason for the dismissal, therefore extending protections for whistleblowers.
In his judgment, Justice Lord Wilson stated that the “courts need generally look no further than at the reasons given by the appointed decision-maker”, but said that because in this case the real reason for the dismissal was hidden, it was “the court’s duty to penetrate through the invention rather than to allow it also to infect its own determination”.
“From an employer's perspective, this decision will most likely concern large organisations with layers of management,” said Annabel Mackay, senior associate in the employment practice at Baker McKenzie. “They will not be able to rely on a particular manager's lack of knowledge as a defence, however innocent. This inevitably increases an employer's exposure to retaliatory actions by a rogue line manager.”
Mackay said that in light of this, employers should ensure they have robust anti-victimisation policies and procedures, and ensure employees are given a proper chance to make representations in decisions to dismiss.
She also advised employers to check whether an employee facing potential dismissal had brought a grievance about a matter that could constitute poor treatment as a result of whistleblowing and, if they had, to take extra steps to satisfy themselves there was no link between the alleged poor treatment and the disciplinary matter.
Trevor Bettany, partner at Charles Russell Speechlys, said it would now be “much more difficult for employers to protect themselves in situations where an employee has manipulated or influenced another employee into dismissing a worker who has made whistleblowing allegations”.
“A can of worms has been well and truly opened today,” he added.
A Royal Mail spokesperson said the organisation was "disappointed by the Supreme Court’s judgment which relates to events that happened six years ago", and that its whistleblowing policy makes it clear that whistleblowers "should not suffer any detrimental treatment" as a result of raising a concern.
They added that any Royal Mail staff can raise concerns anonymously via its dedicated whistleblowing hotline.