Hiding real reason for dismissal from dismissing manager is unfair

If a manager decides to bring about the dismissal of an employee, and fakes an admissible reason which fools the more senior dismissing officer, what is the ‘principal reason’ for dismissal? The hidden reason operating in the mind of the original manager, or the admissible reason operating in the mind of the decision-maker?

The Supreme Court has recently decided that is the hidden reason in the case brought by Jhuti against the Royal Mail Group. This is an extremely important ruling and will have a significant impact all unfair dismissal cases.

Ms Jhuti, who worked in the media, made protected disclosures ('whistleblowing'), alleging breaches of Ofcom guidance. Her line manager retaliated by performance managing her, picking up on every little thing she did. She eventually went off sick with stress, and a senior manager dismissed her on the basis of her line manager’s reports of incompetence.

The senior manager didn’t know about the whistleblowing, so couldn’t have been motivated by it: she dismissed Ms Jhuti because she genuinely accepted reports about her failings.

An employment tribunal dismissed Ms Jhuti’s complaint of unfair dismissal, because the protected disclosures had played no part in the dismissing manager’s reasoning.

However, The Employment Appeal Tribunal allowed Ms Jhuti’s appeal: the reason operating in the mind of the manager who had engineered the dismissal could be attributed to the employer, even though the decision-maker herself was unaware of it. The Court of Appeal disagreed: in deciding what was the reason for the dismissal, a tribunal must confine itself to the mental processes of the person authorised to make the decision. This decision has now been confirmed by the Court of Appeal.

As a consequence, Employment Tribunals will be applying even more scrutiny to unfair dismissal cases to see if there are any other underlying factors behind a dismissal that may exist.
Posted on 29 Nov 2019
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