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Royal Mail Group Ltd v Jhuti, heard 12 June 2019 and 13 June 2019.

The Issue matthew-purchase

Kamaljeel Jhuti made a protected disclosure, as a result of which her line manager made unfounded or misleading criticisms of her performance. As a result of these, a different manager – who was not aware of the protected disclosure or the motivations of her line manager – dismissed Ms Jhuti for poor performance. She claimed that her dismissal was automatically unfair pursuant to the Employment Rights Act 1996 (‘the ERA’), s 103A because the reason for the dismissal was the fact that she had made a protected disclosure.

The main issue in the appeal is whether the mental processes of the line manager, as opposed to the manager who actually made the dismissal decision, can be treated as the reason or principal reason for the dismissal.

The Court of Appeal judgment [2017] EWCA Civ 1632

The ERA, s 103A requires the employment tribunal to determine “the reason (or, if more than one, the principal reason) for the dismissal”. If that reason is the fact that the employee made a protected disclosure, the dismissal is automatically unfair. The ERA, s 98 which concerns “ordinary” unfair dismissal, mandates a similar inquiry into the reason for the dismissal but, provided that the reason is an acceptable one, also requires the tribunal to assess the “reasonableness” of the dismissal.

Neither section expressly directs attention to the mental processes of any particular individual. However, the Court of Appeal held that it is “well established” that determining the reason for a dismissal “involves a subjective inquiry into the mental processes of the person or persons who took the decision to dismiss”.

Arguably, this slightly overstates the position, but there is certainly some (probably obiter) Court of Appeal authority to that effect and some binding Court of Appeal authority to the same effect with respect to the approach to be taken when assessing the reasonableness of the dismissal: see Orr v Milton Keynes Council [2011] EWCA Civ 62. The Court of Appeal in Jhuti held that it was bound by Orr and that the reasoning had to apply to the “reason” question as much as it did to the ‘reasonableness’ question: otherwise the position would be “incoherent and unworkable”.

There is undoubtedly substance in these conclusions. Further, they are arguably supported by the fact that, in a claim for whistleblowing detriment short of dismissal, an individual employee may be personally liable. It would seem grossly unfair for a disciplinary decision-maker who imposed, say, a final written warning to be held to have committed an unlawful act because of the motivation of the person who raised the disciplinary matter: see Reynolds v CLFIS (UK) Lts [2015] EWCA Civ 439 for a similar conclusion in relation to discrimination.

Still, there are ways in which the statutory provisions can be read so as to avoid this consequence while still adopting an expansive reading of sections 103A and 98. Further, arguably the Court in Jhuti went on to undermine the essential logic of its overall conclusion by positing that, in some cases, it might indeed be proper to take into account the reasons of another person. The Court’s (tentative) views were as follows:

  • A manager with some responsibility for a disciplinary investigation, even if that manager did not make the ultimate decision: a “strong case” for taking into account their motivation.
  • A senior manager, such as the Chief Executive: it would “stick in the throat” not to have regard to their motivation.
  • The employee’s line manager: the Court could “see the force of the argument” but felt bound by Orr to conclude that such a person’s motivation had to be left out of account
  • Another colleague without line management responsibilities: clearly to be excluded from consideration.

Clearly, once one moves away from the clear position of focussing only on the mental processes of the decision-maker, it becomes very difficult to discern where the line should be drawn.

Other issues

This was the only issue formally before the Court of Appeal. However, the case raised some other issues on which the Court heard argument and offered views. The main issue of importance was whether an employee in Ms Jhuti’s position could bring a claim for compensation flowing from her dismissal not as a claim for unfair dismissal, but as a claim for whistleblowing detriment pursuant to the ERA, s 43B.

The Court of Appeal’s tentative view was that she could, provided the necessary causative link was established [79]. This seems right: if a line manager makes a false or embellished report about an employee because she made a protected disclosure, and that report causes the employee to be dismissed, why should she not be able to claim all of the losses flowing from that detrimental report, including the losses flowing from the consequential dismissal?  The ERA, s 43B(2) does provide that it is not possible to bring a claim under section 43B about a detriment which “amounts to dismissal”, but the claim here would not be about the dismissal as such: the detriment is making the report.

In the subsequent case of Timis v Osipov [2018] EWCA Civ 2321, the Court of Appeal essentially endorsed its tentative conclusion in Jhuti (and went further, holding that section 43B(2) did not prevent an employee bringing a claim against an individual decision-maker for the detriment of dismissal under that very section).

It is not clear whether Mr Timis has sought permission to appeal. Either way, it will be interesting to see whether the Supreme Court considers it necessary or appropriate to delve into these issues when determining the Jhuti appeal.