Royal Mail Group Ltd v Jhuti

The Supreme Court held that, for the purpose of section 103A of the Employment Rights Act 1996 (automatic unfair dismissal for making a protected disclosure), the true reason for a company's dismissal may be a reason that differs from that given to the employee by the person who formally took the decision to dismiss. Where a managerial person in the employer's hierarchy has determined that the employee should be dismissed for reason A (here, making protected disclosures) but deliberately conceals that reason and causes an appointed decision-maker to adopt an invented reason B (here, alleged inadequate performance), the employer's reason for dismissal is the concealed reason A rather than the invented reason B.

Applying that principle to the facts, the court accepted the tribunal's findings that the appellant made protected disclosures, that her line manager reacted by manufacturing a narrative of poor performance and setting her up to fail, and that the appointed decision-maker dismissed her in good faith on the basis of the false picture. The manager's state of mind was attributable to the company and thus the dismissal was for the protected disclosures and was automatically unfair under section 103A.

Background and facts:

• The appellant, Ms Jhuti, was employed on a trial period by Royal Mail Group Ltd. She made protected disclosures about alleged misuse of "Tailor-Made Incentives" by colleagues. Her immediate manager, Mr Widmer, reacted by criticising her performance, imposing intensive meetings and a performance improvement plan and creating an email trail portraying her as underperforming. Another manager, Ms Vickers, who had not investigated the background, reviewed the material and, genuinely believing it, decided to dismiss Ms Jhuti for inadequate performance. The employment tribunal found that the disclosures were protected, that the appellant had been subjected to detriments in breach of section 47B, but dismissed the automatic unfair dismissal complaint under section 103A on the ground that the decision-maker's reason was inadequate performance.

Procedural posture:

• The appellant cross-appealed to the Employment Appeal Tribunal where Mitting J allowed her cross-appeal, holding that the manipulator's reason could be attributed to the employer. The Court of Appeal allowed Royal Mail's appeal and reinstated the tribunal's dismissal of the section 103A complaint. The Supreme Court heard the appeal from the Court of Appeal.

Nature of the claim / relief sought:

• The claimant brought two complaints: (i) a detriment claim under section 48(1A) and related provisions (Part IVA/Part V) seeking compensation for detriments suffered as a result of protected disclosures; and (ii) an automatic unfair dismissal claim under section 103A (Part X) alleging dismissal because she had made protected disclosures.

Issues framed:

• Whether, in a claim for unfair dismissal under section 103A, the reason for dismissal can be other than that given to the employee by the appointed decision-maker.
• How to attribute knowledge, beliefs or motives of individuals within a corporate employer when identifying the employer's reason for dismissal.

Court's reasoning and decision:

• The court reviewed principles of attribution (including authorities such as Meridian and Bilta) and previous case law on the scope of what knowledge is attributable to the employer. It acknowledged the practical difficulties of attributing mental states to a corporate entity but stressed a contextual approach.
• The court accepted that ordinarily the tribunal should look to the mental processes of the person who was authorised to and did take the dismissal decision. However, it drew a narrow qualification: if a person in the employer's hierarchy above the employee (here the line manager) determines that the employee should be dismissed for a reason but deliberately hides that real reason behind an invented reason which the decision-maker adopts in good faith, the true reason is the hidden reason and that state of mind is attributable to the employer.
• The court considered and distinguished Orr v Milton Keynes Council and related authorities, explaining that those authorities do not preclude the narrow qualification it adopted. It emphasised that the facts here were extreme and not likely to be common.
• Applying the principle to the tribunal's findings, the court concluded there was no need to remit the issue to the tribunal: the tribunal's findings were sufficient to conclude that the dismissal was for the protected disclosures and thus automatically unfair under section 103A.

The court also noted the statutory framework for remedies relevant to whistleblowing claims, the interplay between section 47B (detriments) and section 103A (automatic unfair dismissal), and observed that Parliament has provided specific remedies in each area.

Appeal allowed. The Supreme Court held that where a managerial person in the employer's hierarchy determines the employee should be dismissed for a particular reason but deliberately conceals that reason by fabricating another which the appointed decision-maker adopts in good faith, the employer's reason for dismissal is the concealed reason. On the tribunal's findings that the line manager had fabricated poor performance to conceal dismissal for protected disclosures, the dismissal was for those protected disclosures and was automatically unfair under section 103A of the Employment Rights Act 1996. The Court restored the order of the Employment Appeal Tribunal.

Employment Tribunal: dismissed the section 103A unfair dismissal complaint but found detriments under section 47B (reasons and neutral citation not provided in the judgment). Employment Appeal Tribunal: Mitting J allowed the appellant's cross-appeal (UKEAT/0020/16; reported at [2016] ICR 1043). Court of Appeal: allowed Royal Mail's appeal and reinstated dismissal of the section 103A complaint ([2017] EWCA Civ 1632; reported at [2018] ICR 982). Supreme Court: allowed the appellant's appeal and restored the EAT's order ([2019] UKSC 55).