Imputed knowledge – different for direct discrimination and victimisation?

A few months ago I wrote about the case of Gallop v Newport City Council. This case considered whether a disabled individual can claim that he has suffered less favourable treatment “because of” his disability where the decision maker (as opposed to the employer) had no knowledge of the disability. In this case it was held that the decision maker must know of the disability in order for there to be a finding of direct discrimination.

This is in contrast to the decision in the case of Royal Mail Group Ltd v Jhuti which relates to victimisation of a claimant who made a protected disclosure (i.e. was a “whistle blower”).

In this case Ms Jhuti raised concerns with her employer about regulatory breaches. She was subsequently treated less favourably by her superiors and raised a grievance about that treatment. Following hearings into her grievance she was dismissed.

However, the individual responsible for considering her grievance and her appeal against dismissal dismissed had been led to believe by her managers that she was a poor performer and therefore upheld her dismissal.

As Ms Jhuti had less than the requisite two years’ continuous service, she did not have the right to pursue an ordinary unfair dismissal claim. However, if she was able to show that the reason for her dismissal was because she had made a protected disclosure, then length of service would not apply.

The EAT held that it did not matter that the decision maker in this case was not in possession of the true facts. His decision was manipulated by someone in a managerial position who was responsible for the employee and who was in possession of the true facts. As such, it was held that Ms Jhuti’s dismissal amounted to victimisation.

It would be interesting, therefore, to see whether the decision in Gallop would have been different had the decision maker in this case been manipulated by individuals who were aware of the disability in order to bring about his dismissal. Mr Gallop was dismissed for misconduct. Arguably, if the evidence of the misconduct was manipulated by individuals who did have knowledge of Mr Gallop’s disability, then the EAT’s decision may well have been more akin to the decision in Royal Mail v Jhuti.

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