Whilst Employers may be under the belief that they need only consider the knowledge of an actual decision-maker when dismissing an employee, following a recent decision of the Supreme Court in Jhuti v Royal Mail Limited, a dismissal can still be deemed to be an unfair one even if it can be demonstrated that the decision-maker was not aware of the true (and unfair) circumstances leading to the dismissal.
In the early stages of employment, Ms Jhuti made protected whistleblowing disclosures to her line manager. However, she was subsequently encouraged to retract these allegations and henceforth was criticised for her performance. As a result of this, Ms Jhuti raised a grievance with her employer and was signed off from work on sick leave. During the course of this, another manager who knew nothing of Ms Jhuti’s disclosures or grievance, determined that her employment should be terminated based on poor performance and thereby innocently relying on information on performance that had been provided by the first manager to whom Ms Jhuti had made the protected disclosures.
Ms Jhuti successfully brought a claim on the basis that the principle reason for her dismissal related to the protected disclosures she had made to her first manager, and not to poor performance.
In claims for unfair dismissal under the Employment Rights Act 1996, the courts had in general only previously considered the reason for dismissal given by the decision-maker. Whilst the circumstances, in this case, are relatively extreme, it demonstrates the caution that employers must take when dismissing an employee as if it can be found that the true reason for a dismissal is hidden behind an engineered reason, the court will penetrate the engineered reason and consider the true reason for dismissal, regardless of the knowledge of any decision-maker.
Top tips for Employers:
- Ensure that robust whistleblowing policies and procedures are in place meaning that a fair process is undertaken and all employees are aware of how concerns are to be raised and dealt with;
- Ensure that any disciplinary hearings and subsequent dismissals are conducted in accordance with company policies and procedures, the Acas Code of Practice and that steps are taken to ensure a fair and lawful process; and
- When taking decisions to dismiss employees, ensure that details of any previous grievances raised by that employee are available to any decision-maker involved in the dismissal, ensuring that this is not the reason for dismissal.
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Abigail represents employers and senior managers, and can support your Human Resources Department in any disputes that may arise.