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Whistleblowing: knowledge of employer

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If a manager decides to engineer the dismissal of an employee, and fakes an admissible reason which fools the (more senior) dismissing officer, what is the ‘principal reason’ for dismissal? The hidden reason operating in the mind of the manager, or the admissible reason operating in the mind of the decision-maker?

The hidden reason, held the Supreme Court in Royal Mail Group v Jhuti.

Ms Jhuti, who worked in the media, made protected disclosures ('whistleblowing'), alleging breaches of Ofcom guidance. Her line manager retaliated by performance managing her to within an inch of her life. She eventually went off sick with stress, and a senior manager dismissed her on the basis of her line manager’s reports of incompetence.

The senior manager didn’t know about the whistleblowing, so couldn’t have been motivated by it: she dismissed Ms Jhuti because she genuinely accepted reports about her failings.

An employment tribunal dismissed Ms Jhuti’s complaint of unfair dismissal, because the protected disclosures had played no part in the dismissing manager’s reasoning.

The EAT allowed Ms Jhuti’s appeal: the reason operating in the mind of the manager who had engineered the dismissal could be imputed to the employer, even thought the decision-maker herself was unaware of it. The CA disagreed: in deciding what was the reason for the dismissal, a tribunal must confine itself to the mental processes of the person authorised to make the decision.

The Supreme Court agreed with the EAT.

Thanks to John Smith for preparing this case summary.