24 October 2017

In a previous blog we discussed the Employment Appeal Decisions in Royal Mail v Jhuti. In this case Ms Jhuti, an employee of Royal Mail, made a protected disclosure to her line manager.

Ms Jhuti was dismissed for poor performance. However, the dismissing officer had been deliberately misled by another member of staff (acting in response to the protected disclosure). The Employment Appeal Tribunal decided that both the reason and motivation of the decision maker and the line manager had to be taken into account in deciding the reason for dismissal. Thus the dismissal was because of the whistleblowing even although the dismissing officer did not know of it. The dismissing officer was motivated to dismiss as a result of the whistleblowing.

The Court of Appeal considered the issue afresh and decided that in determining the "reason for the dismissal", an Employment Tribunal must only consider the mental processes of the person(s) authorised to, and who in fact did, take the decision to dismiss. That is “the mind of the employer”.

The Court noted that in unfair dismissal cases, there needs to be unfairness on the part of the employer. Unfair conduct carried out by individual managers or fellow colleagues is not sufficient unless such conduct amounts to the employer’s actions.

This is an important case. Where Claimants have less than 2 years’ service, absent any discriminatory grounds, often reliance is placed upon the grounds of dismissal whereby no service is needed. Whistleblowing is but one example. In this area of law, it is the mind of the dismissing officer that requires to be assessed and their level of knowledge to determine what the reason for dismissal was.

This is another reminder of the complexity within this area of law and of the need for specialist employment law advice.

The judgment can be read here: http://www.bailii.org/ew/cases/EWCA/Civ/2017/1632.html

You can also read our previous blog on this case here: Whose mind is it anyway

To discuss further please contact one of our BTO employment lawyers on 0141 221 8012.