Royal Mail Ltd v Jhuti

For an unfair dismissal claim, the reason for dismissal ordinarily means the factor or factors operating on the mind of the person authorised to take, and who takes, the dismissal decision. That approach applies equally to automatic unfair dismissal for making a protected disclosure. A manager’s unlawful motivation cannot generally be attributed to the employer where the manager has no formal responsibility for the dismissal and merely supplies information to an innocent decision-maker. A claimant may nevertheless recover losses caused by an earlier unlawful detriment where dismissal is a consequence of that detriment, subject to causation and remoteness. The wider effect of section 47B(2) of the Employment Rights Act 1996 remained undecided.

Kamaljeet Jhuti brought claims against Royal Mail under sections 47B and 103A of the Employment Rights Act 1996. The Employment Tribunal found that her line manager subjected her to detriments because she made protected disclosures, but dismissed the automatic unfair dismissal claim because the manager who decided to terminate her employment genuinely and reasonably relied on apparent performance concerns.

The Employment Appeal Tribunal allowed Ms Jhuti’s cross-appeal, holding that the line manager’s motivation could be attributed to Royal Mail. Royal Mail appealed. The central issues were whose mental processes determine the reason for dismissal under section 103A and whether losses flowing from dismissal could be claimed as compensation for earlier unlawful detriments under section 47B.

1. Appeal allowed. Lord Justice Underhill delivered the judgment, with Lord Justices Jackson and Moylan agreeing. The Employment Appeal Tribunal erred in attributing Mr Widmer’s motivation to Royal Mail for the purpose of section 103A.
2. For section 98, the tribunal ordinarily considers only the mental processes of the person or persons authorised to take, and who did take, the dismissal decision. The two stages of section 98 are linked: the reason identified under subsection (1) is the reason whose sufficiency is assessed under subsection (4). It would be incoherent to attribute different knowledge or beliefs at the two stages.
3. The same approach applies to section 103A. Mr Widmer was not an investigator or formal participant in the dismissal decision. His motivation therefore could not be attributed to Royal Mail when Ms Vickers genuinely decided to dismiss for performance reasons.
4. The Court recognised possible qualifications. A person with a formal investigative role in the delegated dismissal process may potentially have his or her motivation and knowledge attributed to the employer. The Court left open whether a very senior manager who procures dismissal by manipulating evidence should be treated differently.
5. There was no obstacle in principle to recovering losses caused by dismissal as compensation for an earlier unlawful detriment, where the dismissal was a consequence of that distinct detriment. The claim was not barred by the way it had been pleaded. Causation and remoteness remained matters for the Employment Tribunal.
6. The Court declined to decide the wider construction of section 47B(2), because the issue had not been fully argued. The remedy hearing could proceed, subject to any live limitation issue being remitted to the Employment Appeal Tribunal.

• Court of Appeal (Civil Division): Royal Mail’s appeal was allowed. The Court declared that Ms Jhuti was not precluded from claiming losses occasioned by dismissal as compensation for unlawful detriments under section 47B.
• Employment Appeal Tribunal: Mitting J allowed Ms Jhuti’s cross-appeal and treated the line manager’s motivation as attributable to Royal Mail. The Court of Appeal reversed that conclusion.
• Employment Tribunal: The Tribunal upheld the protected-disclosure detriment claims but dismissed the section 103A automatic unfair dismissal claim.