Landmark Case: Hiding the real reason for a dismissal may make it unfair

The Supreme Court has ruled that a Royal Mail employee was unfairly dismissed for “blowing the whistle”, not for the alleged poor performance – based on false information – that the company’s HR department suggested was the reason for her dismissal.

The landmark judgment extends the scope of whistle-blower protection and suggests that employers will need to ensure they have the complete information before dismissing an employee.

In October 2013, Ms Jhuti, a media specialist who worked in the postal company’s MarketReach unit, alerted her line manager about concerns that a colleague was infringing Ofcom’s guidance and another company policy relating to incentives to clients.

In a meeting with her manager Mr Widmer, Ms Jhuti was told that her understanding of the rules was questionable. She believed that her job would be at risk if she decided to press further with the allegations, so she retracted her claim. But her line manager then told her that she was failing to meet the requirements of her role and was repeatedly told that her performance was disappointing.

Ms Jhuti claimed that Widmer created a false picture of her performance and had bullied her. In January 2014, he sent an email to HR stating that she was not performing as expected and the company would need to consider terminating her employment if she did not improve.

She was placed on a six-week performance improvement plan in February 2014, but she expressed concerns about Widmer’s conduct towards her and alleged it had stemmed from her whistleblowing. In response, the HR department said Widmer was a respected employee that he would be the one to be believed and that, by reference to her performance, the company might find a way to dismiss her.

She was signed off with work-related stress in March 2014 and never returned to the role. She was later dismissed by the company, but claimed her dismissal was based on false information about her performance that was given to the HR department.

Ms Jhuti took a claim for whistleblowing detriment and unfair dismissal to an employment tribunal. It found that, as the decision-maker had dismissed her based on a genuine belief that her performance had been inadequate; the reason for dismissal was her performance, not her whistleblowing. This was appealed and went up through the courts until it reached the Supreme Court who decided that she had been unfairly dismissed because of the whistleblowing disclosures she had made. The ruling said, “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.”

This means that it is important those taking a decisions to discipline or dismiss an employee to ensure that they are satisfied that there are no hidden reasons being presented to them as part of the investigation, particularly where there may have been protected disclosures made. Be sure you know the real reason for your decision.
Posted on 09 Jan 2020
< back
Cherington HR Limited is registered in England and Wales Company No. 5780092. VAT No. 879 0946 64. Registered Office: Cherington House, Mulberry Drive, Upton upon Severn, Worcester, WR8 0ET, England.

The cheringtonhr® name and logo are UK registered trade marks owned by Cherington HR Limited.