What The Decision Maker Doesn't Know Can't Hurt Or Can It?

Dismissing a worker because they've blown the whistle can lead to a finding of automatic unfair dismissal. But what if the person who made the decision to dismiss was misled by the employee's line manager as to the true facts? Will this still amount to automatic unfair dismissal?

Last year, the Employment Appeal Tribunal (EAT) ruled that the employer should be liable nevertheless and that the line manager's reasoning and motivation should be taken into account and attributed to the employer even though the reasoning was misleading. This was not good news for employers since it clearly bolstered an employee's chances of overcoming the tricky issue of causation in proving a whistleblowing dismissal. However, employers will be relieved to know that the Court of Appeal has disagreed, and has confirmed that a dismissal cannot be for reason of whistleblowing if the decision maker was ignorant of the employee's protected disclosure.

Employees have statutory protection against being dismissed for reason of making a protected disclosure (blowing the whistle). In the event that an employee is dismissed after whistleblowing, the employer must demonstrate that the protected disclosure was not the real reason for dismissal, but that there a set of facts known, or beliefs held, by the employer that provide a potentially fair reason for dismissal.

The facts of the case

Ms Jhuti, an employee at Royal Mail, made protected disclosures to her immediate line manager, Mr Widmer. In response, Mr Widmer put her under great pressure to withdraw her allegations, which Ms Jhuti did, fearing her employment would be terminated if she did not do so.

Ms Jhuti was subsequently subjected to a series of unattainable performance goals set by Mr Widmer. After a period of what Ms Jhuti described as harassment and bullying from Mr Widmer, as a result of her disclosures, Ms Jhuti raised a grievance and went on sick leave.

Another manager, Ms Vickers, reviewed Ms Jhuti's position with Royal Mail. Ms Vickers did not see all of Ms Jhuti's emails setting out her protected disclosures. Instead, Mr Widmer deliberately misled Ms Vickers and supplied emails demonstrating that Ms Jhuti had withdrawn her disclosures. Ms Vickers accepted this without further investigation and Ms Vickers made the decision to dismiss Ms Jhuti for poor performance.

After an unsuccessful appeal, Ms Jhuti brought an employment tribunal claim alleging automatic unfair dismissal as a result of making protected...