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Employment Law Case Update: Detrimental Treatment due to Whistleblowing

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As an employer, at some point, you may well have to deal with a case of whistleblowing. If this happens it is very important to go through the proper processes to address the claim. Not doing so can leave you open to potentially expensive and damaging tribunal claims, as seen in the the case of Royal Mail v Jhuti, which illustrates the wide scope afforded to whistleblowing protection and shows the need to be sure and clear of the reason for any dismissal.

In October 2013 Ms Jhuti, a media specialist who worked in the postal company’s MarketReach unit, notified her line manager - Mr Widmer - about concerns that a colleague was interfering with the company’s rules and regulatory requirements.

In a meeting Mr Widmer informed Ms Jhuti that her understanding of the rules around the regulatory requirements of the company was questionable, and that she had misunderstood them. She was made to feel as though her job would be at risk if she decided to take the allegations further.

After the meeting, Mr Widmer told the Ms Jhuti that her performance was disappointing and she was placed onto a performance improvement plan. The Employment Tribunal (ET) later decided that this review was imposed by Mr Widmer to pretend that Ms Jhuti’s performance was poor in order to dismiss her.

Ms Jhuti stated that Mr Widmer had created a false picture of her performance and had bullied her. In January 2014, Mr Widmer went on to send an email to HR which stated that Ms Jhuti was not performing as expected and that the company would need to consider “exiting” her if she did not improve.

Ms Jhuti expressed concerns about Mr Widmer’s behaviour towards her and alleged it was due to her whistleblowing. In response, the HR department said that Mr Widmer was a respected employee and he would therefore be the one to be believed.

The company went on to appoint another manager, Ms Vickers, to decide whether Ms Jhuti should be dismissed. In March 2014, Ms Jhuti had since been signed off for work-related stress, anxiety and depression, and was therefore unable to present her case. Having no reason to doubt the validity of the argument made by Mr Widmer, which indicated Ms Jhuti’s inadequate performance, Ms Vickers decided that the claimant should be dismissed for that reason.

Ms Jhuti took the case to the ET, arguing unfair dismissal and detrimental treatment due to whistleblowing. The ET found that, as Ms Vickers had dismissed her based on a genuine belief that her performance had been inadequate, the reason for dismissal was her performance, not her whistleblowing and it therefore dismissed the Ms Jhuti’s unfair dismissal claim.

The ET’s decision was then reversed by the Employment Appeal Tribunal (EAT), which upheld the unfair dismissal claim, however, this decision was overturned by the Court of Appeal (CoA), which held the view that the tribunal was only required to focus on the processes of the decision-maker, Ms Vickers, rather than taking Mr Widmer’s involvement into account.

The case was then heard in the Supreme Court, in which the CoA’s decision was reversed, stating that the key issue of the case was “the reason (or, if more than one, the principal reason) for the dismissal” and therefore it found that the real reason for her dismissal was the fact that protected disclosures were made.

Lord Wilson said: ““If a person in the hierarchy of responsibility above the employee determines that she (or he) should be dismissed for a reason but hides it behind an invented reason which the decision-maker adopts, the reason for the dismissal is the hidden reason rather than the invented reason.”

It is important to note that the court also stated that the facts of this case were rare and future claims similar to this are likely to be an irregular occurrence. Because of this, it is likely to still be the processes of the decision-maker which remain the sole focus when determining the outcome of a claim of unfair dismissal - but employers should be mindful in the reasons given for any dismissal, especially if another factor has been considered or raised by the employee.

If you have any questions regarding this article, or you need advice on the whistleblowing process, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

This was previously part of our weekly Employment Law Newsletter. If you would like to subscribe, please email us at events@warnergoodman.co.uk or click here for the subscription form.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.