Fairness of dismissal – what is known or what should be known?

By Lupton Fawcett employment director, Joan Pettingil. 

The recent case of Royal Mail v Jhuti raised the interesting question of whether an employer can be liable for a claim for automatic unfair dismissal on grounds of whistleblowing when the dismissing manager has been duped by another manager into believing the dismissal was for another justified reason, in this case – poor performance.

Ms Jhuti made a protected (whistleblowing) disclosure to her manager, Mr Widmer.   Mr Widmer’s response was to question Ms Jhuti’s understanding of the procedures and advised her to admit that she made a mistake and retract her allegation. Fearing she may lose her job, Ms Jhuti complied.

Mr Widmer put Ms Jhuti on performance management, which in turn lead to Ms Jhuti lodging complaints with HR about her treatment, stating she was being harassed and bullied by Mr Widmer as a result of her blowing the whistle.  She was subsequently signed off sick.

A different manager, Ms Vickers, who was unaware of the disclosure or the subsequent grievance, was appointed to review Ms Jhuti’s case. Ms Vickers became aware of the protected disclosure by talking to Mr Widmer, who simply advised that Ms Jhuti had misunderstood the procedure and retracted her allegations.  Ms Vickers terminated Ms Jhuti’s employment for poor performance.

Ms Jhuti brought various claims in the Employment Tribunal including victimisation. The case was appealed and was eventually heard in the Court of Appeal. The question was whether the dismissal was fair by reason of the dismissing manager (Ms Vickers) being unaware of the details of the protected disclosure made to Mr Widmer, or whether Ms Vickers ought to have known about the protected disclosure, therefore resulting in the dismissal being unfair and her having been victimised.

The Court of Appeal held that the dismissal had been fair. It stated that what the employer reasonably believed when dismissing the employee had to be determined by reference to what the dismissing manager actually knew and not what knowledge the dismissing manager ought to have had.

The Court of Appeal made some interesting comments relating to manipulation cases. In cases where a colleague or line manager, with no responsibility for dismissal as in Ms Jhuti’s case, manipulates the evidence to result in dismissal, the employer is likely to be seen to have still acted fairly.

However, where the manipulation has come from a manager with some responsibility for the dismissal or perhaps someone higher in the company hierarchy in order to procure a dismissal, it may well be that the knowledge of the manipulator could be attributed to the employer, thus making a decision to dismiss unfair and a finding of victimisation to be made.

Whilst at first blush this decision may seem unfair on employees in such a predicament.  However, it is likely to be easier for them to argue dismissal due to unlawful detriment instead.

Joan Pettingill can be contacted on 0114 228 3252 or joan.pettingill@luptonfawcett.law

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