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If an employee is dismissed on bogus grounds invented by someone more senior than her in the business, that person’s true reason for acting as they did will be the real reason for the dismissal, even if the decision to dismiss was made by another person acting in good faith in reliance on the bogus grounds.

Facts

Ms Jhuti was employed by the Royal Mail Group. She made a protected disclosure to her line manager, alleging that a fellow employee was breaching Ofcom guidance. The line manager reacted badly and gave her a ‘two-hour dress-down’. He then began to complain about her performance, imposed a performance improvement plan on her, and asserted that she had failed to make adequate progress against the plan. However, he was not in fact concerned about her performance: he acted as he did because she had made her protected disclosure.

As a result, Ms Jhuti’s case was referred to another manager to consider whether she should be dismissed. Although Ms Jhuti had made some representations to Human Resources that her line manager was managing her out because he held a grudge about her protected disclosure, she did not make any real contribution to the dismissal process because she was off on sick leave.

The other manager decided to dismiss Ms Jhuti on the ground of poor performance. That manager acted in good faith on the evidence she had.

Ms Jhuti made a claim for unfair dismissal. The issue on appeal was whether the reason for the dismissal was that of the dismissing manager – performance, a permissible reason – or that of her line manager – the fact that she had made a protected disclosure, an impermissible reason.

The legislation 

Under the Employment Rights Act 1996, section 94 an employee has a right not to be unfairly dismissed.

Under the 1996 Act, s98 (1) a dismissal will be unfair unless the employer establishes that ‘the reason (or, if more than one, the principal reason) for the dismissal’ was one of a specified set of so-called ‘potentially fair’ reasons. These include a reason which ‘relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do’. If such a reason is established, the fairness of the dismissal then turns on whether the employer’s decision was reasonable under the 1996 Act, s 98 (4).

However, under the 1996 Act, s103A a dismissal is ‘automatically’ unfair if the reason or principal reason for it is the fact that the employee has made a protected disclosure.

Identifying the true reason for Ms Jhuti’s dismissal was accordingly critical in this case.

The judgment 

Lord Wilson gave the leading judgment, with which Lady Hale, Lord Carnwath, Lord Hodge and Lady Arden agreed.

Lord Wilson observed that, where it is necessary to attribute a human state of mind to a company, it is necessary to determine which persons’ mental processes will count as those of the company. This depends on the context [43]. Identifying what caused an employer to dismiss an employee had to be approached in a broad and common-sense way [44-45].

Lord Wilson observed that, normally, a tribunal need look no further that the reasons given by the appointed decision-maker [60]. However, there were at least two situations in which it would be appropriate to look elsewhere:

  • First, where another person involved in the disciplinary process manipulated the decision-maker’s beliefs for an impermissible reason [53].
  • Secondly, where a person in the hierarchy of responsibility above the dismissed employee decided that the employee should be dismissed for an impermissible reason but hid this behind an invented reason which the decision-maker then adopted [60, 62].

Ms Jhuti’s case fell within the second category. Accordingly, the real reason for her dismissal was that she had made protected disclosures . She had been unfairly dismissed.

Part Two of this comment is available here.