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Case law: An unlawful reason for dismissal such as whistleblowing can be imputed to employer even if not known to the employee making decision to dismiss

Employers considering whether to dismiss an employee should ensure the relevant decision-maker enquires into the background to the proposed dismissal, particularly whether the reason adopted by the decision-maker is (unknown to the employer) an invented reason hiding the real reason for dismissal – for example, because they are a ‘whistleblower’ who made a protected disclosure.

January 2020

This update was published in Legal Alert - January 2020

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

A new employee in a media role reported alleged breaches of Ofcom guidance by a co-worker – this was a ‘protected disclosure’ known as whistleblowing – while still on trial. Dismissing an employee for whistleblowing is unlawful.

A senior manager, whose bonus would have been affected if her allegation was justified and the breaches remedied, held a four-hour meeting with her in which he frightened her into withdrawing her allegations and forced her to apologise for making them. He then subjected her to a regime of intensive performance management over several months, during which he continued to record and report that she was failing to meet necessary performance standards, to the extent she became seriously ill with stress.

Another manager brought in to review the situation and her performance was unaware of the background – she had no knowledge of the whistleblowing allegations as a possible motive for the senior manager to want the employee dismissed.

As the employee was so ill, the manager relied on emails she sent in relation to the review. Due to her illness, there were many such emails and they were often rambling and difficult to understand. If in doubt over what the employee was referring to in them, the reviewing manager asked the senior manager to explain them. The reviewing manager, on the strength of the evidence available to her (though unbeknown to her, it was ‘hugely tainted’), genuinely believed that the employee’s performance had been inadequate, and dismissed her for that reason.

The employee claimed she had been dismissed for whistleblowing. The Supreme Court agreed, saying that the dismissal had been engineered by the senior manager who had bullied, intimidated and harassed her and subjected her to intensive micro-management of her performance. It said his mental processes – the reasons in his mind for doing so - could be imputed to the employer.

The Supreme Court stated that “…if a person in the hierarchy of responsibility above the employee determines that she (or he) should be dismissed for a reason but hides it behind an invented reason which the decision-maker adopts, the reason for the dismissal is the hidden reason rather than the invented reason…”.

This overruled the decisions of both the Employment Tribunal and the Court of Appeal, which had found that a tribunal or court had to limit itself to the mental processes in the mind of the person actually dismissing the employee when deciding whether the reason for a dismissal was whistleblowing.

Operative date

  • Now

Recommendation

  • Employers considering whether to dismiss an employee should ensure they make full enquiries into the background to the proposed dismissal, particularly whether the reason adopted by the decision-maker is (unknown to them) an invented reason, put forward to hide the real reason – for example, to cover up a protected disclosure.

Case ref: Royal Mail Group v Jhuti [2019] UKSC 55

Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.

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