It’s not often that employment disputes reach the Supreme Court, however Royal Mail Group v. Jhuti [2019] UKSC 55 is an recent example. Despite some conflicting judgments en route, this final one perhaps isn't surprising given deceit was at the heart of the decision to dismiss the employee.

J made various protected disclosures (aka whistleblowing) within the scope of s43A Employment Rights Act 1996 (“ERA”). In short, J believed that a colleague was infringing Ofcom’s guidelines in respect of Royal Mail's use of Tailor Made Incentives (“TMI’s”). By doing so, it helped the colleague to achieve her targets, thereby securing her bonus. Furthermore, the line manager W, indirectly benefited as well.

J made these protected disclosures to W, who in turn provided details of them to his line manager.

A four hour meeting was held between W and J. W suggested that J’s understanding of how the TMI policy worked was questionable and, if she was wrong, it would impact on her position. During a break J realised that if she continued to persist with these allegations then her employment might be at risk. So on reconvening the meeting J apologised repeatedly, and agreed she would comply with W’s suggestion that she email him, confirming she had made a mistake and was therefore retracting her contentions.

W then gave J a two hour "dressing down" during which, for the first time, he suggested J was underperforming. He issued her with a list of performance targets.

Following the meeting, J emailed W retracting her allegations.

W also commenced arranging weekly meetings with J in order to monitor her performance. No other employee was the focus of such scrutiny. J went off sick for several weeks and, on her return, she was subjected to a six week performance improvement plan. J was told she needed to pass in order to get through her trial period successfully.

J emailed R in HR saying she was concerned about W’s conduct towards her, and that it appeared to have been precipitated by the concerns she had raised previously, concerns which she was later forced to retract. R’s response was to suggest that W was a respected employee and, therefore, it was more likely he would be believed. Further, by reference to J’s performance the company might find a way to dismiss her.

Following J’s communication with R, R offered J a years' salary provided J agreed to a mutual termination of her employment. J rejected this offer [NB: The Employment Tribunal later found the generosity of this offer to be "strange" given J’s short period of service.]

As a result of J’s supposed (and continuing) underperformance a capability hearing was convened by a different manager. This manager decided that J should be dismissed. In reaching her decision the manager had no reason to doubt the truthfulness of the case against J. Indeed, the manager was only asked to “review” the evidence, rather than investigating matters for herself. Crucially, she was not provided with key emails which had passed between J and W. These emails may have shed light about J's original concerns.

The Employment Tribunal
The Tribunal dismissed J’s claims of unfair dismissal because the protected disclosures she had made to W formed no part of the dismissing manager’s decision to dismiss her.

The Employment Appeal Tribunal (“EAT”)
The EAT upheld J’s appeal. In short, it concluded that if someone in a managerial position, responsible for J, had manipulated a decision to dismiss J which had been made in ignorance of the manipulation, then the manipulator’s reason for the dismissal could be attributed to the employer for the purposes of section 103A ERA (unfair dismissal). Therefore, the reason for J’s dismissal was down to the fact that she had made a protected disclosure.

Court of Appeal
The Court of Appeal overturned the EAT’s decision and found for Royal Mail.

The Supreme Court
The Supreme Court found for J.

The Court’s final paragraph stated:
“if a person in the hierarchy of responsibility above the employee determines that she (or he) should be dismissed for a reason but hides it behind an invented reason which the decision maker adopts, the reason for the dismissal is the hidden reason rather than the invented reason.”

It is not difficult to see why the Supreme Court came to the decision it did. Lord Wilson said that when the reason for the dismissal is an invented reason, it is the Court’s duty to penetrate through that invention, rather than to allow it to infect its own determination.
CONTACT: Christopher Filor
EMAIL: cfilor@filorsolicitors.co.uk   TELEPHONE: 01647 231475
MOBILE: 07891 055856   www.filorsolicitors.co.uk
This publication is not intended to provide legal or other professional advice and should not be relied upon as such. Readers should take legal advice before applying the information contained in this briefing.
You are receiving this email because you are subscribed to the Filor Solicitors mailing list.
If you have received this email in error, please accept our apologies.
If you do not wish to receive further emails from us, please click here to unsubscribe.
1If you cannot see this email, please click here for the web version.