Royal Mail Group Ltd v Jhuti – Supreme Court Judgment 27 November 2019.
Section 103(A) of the ERA 1996 provides:
“An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure”
In this case, it was held that Ms Jhuti had made protected disclosures to her line manager during her 6 month probationary period. Her line manger put pressure on her to withdraw her complaints on the basis that she was in her probationary period and she need to think carefully about her future at the company. Ms Jhuti sent an e-mail apologising for the complaints and saying that she had been mistaken. The email was sent under duress.
The line manager then started a campaign of bullying and harassment against Ms Jhuti, including inventing complaints of poor performance and ensuring that she was placed on a PIP.
An independent manager was brought in to consider Ms Jhuti’s performance under the PIP (by this time Ms Jhuti was off work with work related stress which caused alopecia). Following this manager’s investigation (which involved the consideration of documents provided to her, including the email from Ms Jhuti withdrawing the complaint but excluding other relevant correspondence relating to the whistleblowing and subsequent complaints raised by her), the manager decided that Ms Jhuti ought to be dismissed for poor performance. The reason for the termination in the mind of the manager was poor performance and this was based on the information she had. The argument put forward by the company was that, as the reason for the dismissal was poor performance (irrespective of a third party’s motivations in seeking that outcome), Ms Jhuti could not argue that her dismissal was automatically unfair. The Supreme Court was asked to determine whether, in fact, this was the real reason for her dismissal notwithstanding the fact that it was based on the decision maker’s genuine belief as to her suitability for the role.
It was concluded, in short that:
“Yes, 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.”
In reaching this conclusion, the Supreme Court held that, it is usually the case that, when searching for the reason for a dismissal, the court need “look no further than at the reasons given by the appointed decision-maker”. However, in this case, the real reason was concealed from the decision maker and an invented reason was made up with supposedly supporting evidence. For that reason, the Supreme Court said that it is “the court’s duty to penetrate through the invention rather than allow it to also infect its own determination”. This decision represents a shift in how the reason for dismissal can be determined under the Employment Rights Act 1996 but, in practice, is likely to be something that very rarely needs to be considered.
Take Aways:
- Employers should always ensure that decision makers are fully appraised of ALL the facts. This reinforces the need for a full and fair investigation in all disciplinary and dismissal proceedings before the findings of the investigation are provided to the ultimate decision makers.
- Investigators should be reminded that it is their duty to consider not only the evidence provided by the employer but all other evidence, including that which might contradict that provided.
- Where an employee is off sick that does not mean the investigation cannot include evidence provided by the employee. The investigation needs to give all possible opportunities for the person under investigation to provide his/her own evidence. This can include meeting at alternative venues or allowing them to participate in written questions and answers.