November 30, 2017

Whistleblowing: What if the Decision-Maker Was Not Aware of the Protected Disclosures?

In Royal Mail Ltd v Jhuti [2017] EWCA Civ 1632 the Court of Appeal considered whether an employee who had made protected disclosures had been unfairly dismissed by a manager who was unaware that the employee had made such disclosures.

Ms Jhuti, an employee of Royal Mail, raised allegations of wrongdoing by a colleague with her line manager which amounted to protected disclosures under the U.K.’s whistleblowing legislation. Her line manager pressured her to withdraw the allegations and, fearing she would lose her job, she did so. She was then subjected to a period of alleged harassment and bullying by her line manager. She raised a grievance and was signed off work with stress. A previously unconnected manager, Ms Vickers, was appointed to review the situation and was deliberately misled by Ms Jhuti’s line manager with regard to the protected disclosures. Not being aware of the protected disclosures, Ms Vickers decided to dismiss Ms Jhuti for poor performance. Ms Jhuti brought a claim for unfair dismissal, alleging that the fact that she had made protected disclosures was the sole or principal reason for her dismissal.

The Court of Appeal held that the dismissal was not unfair. It highlighted that unfair dismissal requires unfairness on the part of the employer and what the employer reasonably knew on dismissing the employee had to be determined by reference to what the employee making the decision to dismiss actually knew. At the time of her dismissal, Ms Vickers had not been aware of Ms Jhuti’s protected disclosures and genuinely believed her to be a poor performer. The fact that Ms Vickers had been misled by Ms Jhuti’s line manager was immaterial as there was no justification for attributing his knowledge to her. 

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