The Employment Tribunal's task is to find the real reason for dismissal
Whistleblowers are protected against dismissal and from any detriment in the workplace caused by their protected disclosure. In the case of Royal Mail Group v Jhuti the Supreme Court held that protection can apply even if the person who makes the decision to dismiss the employee is not aware that the individual has made a disclosure. The issue is what is the real reason for the dismissal or detriment and finding that out may mean that the actions of others have to also be considered.
Ms Jhuti had made a whistleblowing disclosure to her line manager which was not well received by him. He set about creating a false picture of poor performance by Ms Jhuti which ended up in disciplinary proceedings being instigated. For the disciplinary process the employer appointed a different manager, who knew nothing of Ms Jhuti’s whistleblowing and had no reason to doubt the truthfulness of the poor performance evidence which was found to be sufficient to justify dismissal.
The Supreme Court held that it was not only the “mental processes” of the dismissal decision-maker that mattered. Whilst that person had based their decision on poor performance it was necessary to look behind that to determine the “real reason" as that was what was required under the legislation. Normally, the real reason will be the reason given by the decision-maker but where, as in this case, the real reason has been hidden, the court must “penetrate through the invention”.
Employees who have made whistleblowing disclosures may be subject to disciplinary or performance processes that are genuinely unconnected. It is still recommended that in those circumstances the investigation into the whistleblowing disclosure should be dealt with separately from any other HR process, with different decision-makers being appointed for each. This case highlights the risks only where there is a sham process motivated by the whistleblowing disclosure.
Tips to prepare for giving evidence
It’s not uncommon to be anxious when faced with giving evidence at an Employment Tribunal. To prepare, watch our short video on what to expect:
Gateley Plc is authorised and regulated by the SRA (Solicitors' Regulation Authority). Please visit the SRA website for details of the professional conduct rules which Gateley Legal must comply with.