In a whistleblowing unfair dismissal case, does a tribunal need to enquire into the decision-making process by considering the motives of people other than the decision-maker, if it finds that the dismissing manager was in the know about an overall plan to dismiss a whistleblower?
No, held the EAT, in University Hospital North Tees & Hartlepool NHS Foundation Trust v Fairhall, dismissing the employer's appeal.
The Claimant, who had 38 years' clean service, was suspended and then dismissed after making protected disclosures about patient safety. Her pre-dismissal grievance and appeal against dismissal were rejected. The tribunal found that the Claimant's treatment was grossly unfair and was designed to get rid of her because of her disclosures. It rejected the dismissing manager's evidence on the reason for dismissal. The tribunal hearing concluded before the Supreme Court's judgment in Jhuti (knowledge of 'whistleblowing' can be imputed to a dismissing manager unaware).
The EAT rejected the Respondent's contention that the tribunal had erred by drawing an inference as to the reason for dismissal being the protected disclosures because of the unexplained conduct of the Respondent's other managers involved in the Claimant's suspension and grievance, rather than only considering the thought-processes of the dismissing manager. This was not a Jhuti-type case, where an innocent manager had been duped into dismissing a whistle blower, so there was no need to examine the thought processes of other managers involved. The EAT also held at paragraph 48 that where a Claimant makes a prima facie case that dismissal was for making a protected disclosure, and the Respondent's reason for dismissal is rejected, there is no need to consider if there was another reason for dismissal not put forward by either side.
Thanks to Ed McFarlane of Law at Work for preparing this case summary.