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Victimisation: Knowledge of Protected Disclosure

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Is it automatically unfair to dismiss someone under s 103A ERA 1996 for making a protected disclosure if the person who made the decision to dismiss had incomplete knowledge of the protected disclosure, and was deliberately misled by senior management that the reason for the dismissal was poor performance?

Yes, the EAT held in Royal Mail Group Limited v Ms K Jhuti.

The Claimant raised concerns over regulatory breaches. She was consequently deliberately subject to detriments by her superiors, and dismissed. Management manipulated the facts and led the investigator of the Claimant's grievance and dismissal appeal to believe she was a poor performer, when that was not the case.

The Claimant had under two years’ service and no recourse to unfair dismissal, was described as an extremely poor performer and yet was first offered three months’ salary and then one year’s salary to leave before her dismissal.

The EAT held that the decision of a person made in ignorance of the true facts, whose decision was manipulated by someone in a managerial position responsible for the employee who is in the possession of the true facts, will reach the requisite level to amount to victimisation.