The danger of someone influencing the outcome of a process

It’s not every day that an Employment Law case goes to the Supreme Court, the highest court in our land. 

The case of Royal Mail Group v Jhuti has been awaited after the disagreement between the Courts as to what the outcome should be.  The problem for the Court was thus: if a manager decides to engineer the dismissal of an employee, faking the permissible reason for the person’s dismissal, and fools a more senior manager into dismissing them, what is the ‘principal reason’ for dismissal (that is something the Tribunal has to decide in an Unfair Dismissal claim).  Is it the hidden reason operating in the mind of the manager, or is it the permissible reason operating in the mind of the decision-maker?

Ms Jhuti worked in the media and had made protected disclosures, or whistleblown, alleging  breaches of OFCOM guidance.  The line manager retaliated by performance managing her to the nth degree. Eventually she became unwell and ultimately, the senior manager dismissed her on the basis of reports about her incompetence.  The senior manager who made the decision to dismiss, knew nothing about the whistleblowing and so she couldn’t have been motivated by it.  She dismissed the employee because she genuinely accepted the reports about her failings.

In the Employment Tribunal, the complaint of Unfair Dismissal in connection with protected disclosures failed, and the Tribunal found that the protected disclosures/whistleblowing had no part in the decision to dismiss.

In the Employment Appeal Tribunal, they found that the reason operating in the mind of the manager who engineered the dismissal could be imputed to the employer, even though the decision-maker herself was unaware of it. 

The case then went to the Court of Appeal who looked at the orthodoxy that said that in deciding what was the reason for dismissal, the Tribunal has to look at the mental processes of the person authorised to make that decision. 

The Supreme Court has now confirmed that the Employment Appeal Tribunal’s reasoning is the preferred one and as it is highest court in the land, the law will stay with this now.

At first blush it may seem like a rather unfair proposition as regards employers – you can be found to be liable, even when the decision-making manager’s decision has been innocently reached.  It shows the Court’s willingness to, in the words of Lord Justice Wilson, “penetrate through the invention rather than to allow it also to infect its own determination”.

However, there are steps that an employer can take to prevent this sort of situation arising:

• It will be key to ensure employees are given a proper chance to make representations at a dismissal meeting in relation to the potential decision to dismiss them.  This gives them the opportunity to raise any concerns that there is a hidden agenda.
• Those who have the power to dismiss in the organisation need to be made aware of the entire background to any case that comes in front of them.  For example, if the employee has raised a grievance in the past, there is material information that they will need to understand, as they will have to satisfy themselves that there isn’t a link between alleged poor treatment in the grievance complaint and what is happening now.
• Those investigating disciplinary issues and dealing with performance need to understand how to investigate thoroughly before reaching a decision.  In particular, would those individuals even know what a whistleblowing complaint was?  The law is now so complex, that some investigation training is necessary – gone are the days where a line manager can just rubber stamp something that has been put in front of them.

I have been flagging up for some time the importance of whistle-blowing for all those that work in HR to make sure their line managers have an understanding of how it works.  I am frightened by the lack of requests I get for training in this area, suggesting that people are over-confident that they understand what whistleblowing is, perhaps naively not appreciating the breadth of the law now.  Things which are by no means obvious will constitute protected acts. Contact me for more information adenton@refreshinglawltd.co.uk