Royal Mail Group Ltd v Jhuti

When identifying an employer’s reason for dismissal, a tribunal will generally examine the reason given by the authorised decision-maker. A narrow qualification applies where a person above the employee in the hierarchy of responsibility decides that the employee should be dismissed for a prohibited reason, conceals it behind an invented reason, and causes an innocent decision-maker to adopt the invention.

In that situation, the hidden reason is attributed to the employer and constitutes the reason for dismissal. A tribunal must penetrate the invented reason rather than allow the deception to determine the statutory question. The principle applies to section 103 A and the corresponding language elsewhere in Part X of the Employment Rights Act 1996.

The appellant employee made protected disclosures to her line manager concerning suspected regulatory breaches. The employment tribunal found that the manager retaliated by creating a false record of inadequate performance and setting her up to fail. A different manager, unaware of the manipulation, honestly relied upon that record and dismissed the employee for poor performance.

The tribunal dismissed the complaint of automatic unfair dismissal under section 103 A of the Employment Rights Act 1996. The Employment Appeal Tribunal allowed the employee’s cross-appeal, but the Court of Appeal reversed that decision in [2017] EWCA Civ 1632, holding that attention was confined to the mental processes of the authorised decision-maker.

The central issue was whether the statutory reason for dismissal could be a reason other than that honestly held and given by the person who made the dismissal decision.

1. Appeal allowed unanimously. Lord Wilson gave the judgment, with which Lady Hale, Lord Carnwath, Lord Hodge and Lady Arden agreed. The Employment Appeal Tribunal’s order allowing the employee’s cross-appeal was restored, and the contrary part of the Court of Appeal’s order was set aside.

2. The attribution of a human state of mind to a company depends upon the language, content and policy of the relevant rule. Under section 103 A of the Employment Rights Act 1996, Parliament intended dismissal to be automatically unfair where the real reason was the employee’s protected disclosure. The statutory language should be applied broadly and reasonably, consistently with industrial realities and common sense: paras 42–46 and 59.

3. Ordinarily, a tribunal searching for the reason for dismissal under section 103 A, or under another provision in Part X using the same language, need look no further than the reasons of the authorised decision-maker. The decision-maker will normally consider the employer’s stated reason, the employee’s response and any suggested alternative reason: para 60.

4. A narrow qualification applies where a person placed above the employee in the employer’s hierarchy of responsibility determines that the employee should be dismissed for one reason, but hides that reason behind an invented reason which an innocent decision-maker adopts. The hidden reason, and the manipulator’s corresponding state of mind, are attributed to the employer. The tribunal must penetrate the invention rather than allow it to infect its determination: paras 60 and 62.

5. The qualification was satisfied. The tribunal had conclusively found that the line manager retaliated against the protected disclosures, dishonestly constructed a record of poor performance, and made the employee’s dismissal inevitable. Although the dismissing manager genuinely believed the invented performance case, the statutory reason for dismissal was the protected disclosures: paras 41, 60–61.

6. Orr v Milton Keynes Council [2011] EWCA Civ 62 did not require overruling. Its facts involved truthful but incomplete information, not a falsely constructed case presented to a deceived decision-maker. The present decision attached only a narrow qualification to it: paras 52 and 61.

1. United Kingdom Supreme Court: The employee’s appeal was allowed unanimously. The relevant part of the Court of Appeal’s order was set aside and the Employment Appeal Tribunal’s order was restored: [2019] UKSC 55.

2. Court of Appeal: The employer’s appeal was allowed. The court held that the statutory inquiry was generally confined to the mental processes of the person authorised to make, and who made, the dismissal decision: [2017] EWCA Civ 1632; [2018] ICR 982.

3. Employment Appeal Tribunal: Mitting J allowed the employee’s cross-appeal. He attributed the manipulating manager’s reason to the employer and held that the protected disclosures were the reason for dismissal: UKEAT/0020/16; [2016] ICR 1043.

4. Employment Tribunal: The tribunal upheld the protected-disclosure detriment complaint but dismissed the automatic unfair dismissal complaint. It found that the dismissing manager honestly believed the employee’s performance was inadequate, although her evidence was seriously tainted by the line manager’s manipulation.