Whistleblowing: dismissal automatically unfair even though decision-maker unaware of protected disclosure

01.08.2016

The EAT has held in Royal Mail Group Limited -v- Jhuti 2016 that an employee was automatically unfairly dismissed for making protected disclosures, even though the manager taking the decision was unaware of the disclosures.
Ms Jhuti had been employed by Royal Mail for less than two years when she made protected disclosures to her manager, Mr Widmer. Following those disclosures, she was set an “ever-changing unattainable list of requirements”. She contacted HR to complain that she was being harassed and bullied as a result of her disclosures, before going on sick leave. She subsequently raised a grievance, and rejected an offer by Royal Mail to terminate her employment with a payment of one year’s salary. Another manager, Ms Vickers, was appointed to investigate the matter. She was not shown the emails containing the protected disclosures and was manipulated by Mr Widmer. Ms Vickers decided to dismiss Ms Jhuti; the Tribunal held that she genuinely believed that Ms Jhuti was a poor performer. As such, the dismissal was not automatically unfair because Ms Vickers was not motivated by the protected disclosures.
The EAT allowed the appeal. A decision made by one person in ignorance of the true facts and which is manipulated by someone else in a managerial position responsible for an employee, who is in possession of the true facts, can be attributed to their employer. Mr Widmer was Ms Jhuti’s direct line manager and she had made protected disclosures to him, for which she was clearly subjected to a detriment. Mr Widmer successful set up a paper trail which caused Ms Jhuti to fail, and he lied to Ms Vickers about the disclosures. Ms Vickers was also deprived of other information (for unexplained reasons) by HR. In these circumstances it was appropriate to attribute the knowledge to the employer and Ms Jhuti’s dismissal was automatically unfair.