Poor performance

Under section 103A of the Employment Rights Act 1996 (ERA), it is automatically unfair to dismiss a worker because they made a protected disclosure (blew the whistle). In Royal Mail Group Ltd v Jhuti, the Court of Appeal held that it was not a whistlelowing dismissal if the dismissing officer believed it was for another reason, in this case poor performance.

Basic facts

Shortly after Ms Jhuti was recruited as a media specialist in the Royal Mail’s sales division, she contacted her manager, Mr Widmer, to report that a colleague had committed a regulatory breach. At a meeting supposedly to deal with her concerns, he instead pressurised her to withdraw her allegations, indicating that if she did not do so she would not be retained after her probationary period.

Although she withdrew her complaints, she became increasingly unhappy about her relationship with Mr Widmer who was critical of her performance and set her endless targets and requirements for improvement. Shortly after raising a grievance about her treatment by Mr Widmer, she went off sick.

Several months later, she was given three months’ notice of dismissal because of her failure to meet the required standards of a media sales specialist. This was accompanied by a four-page letter by the dismissing officer, Ms Vickers, which made clear that Ms Vickers had seen the e-mail that Ms Jhuti had sent to Mr Widmer withdrawing her allegations, but not the original e-mails she had sent about the regulatory breach. Ms Jhuti lodged a claim for automatically unfair dismissal on the basis that she had been dismissed for making protected disclosures under section 103A ERA.

Tribunal and EAT decisions

The tribunal held that the issues raised by Ms Jhuti amounted to protected disclosures under section 47B ERA. However, as she had been dismissed because Ms Vickers genuinely believed that she was a poor performer (as the result of the “tainted” evidence from Mr Widmer) and not because she had made protected disclosures, her claim could not succeed.

The EAT (LELR 484) overturned this decision, holding that “a decision of a person made in ignorance of the true facts whose decision is manipulated by someone in a managerial position responsible for an employee, who is in possession of the true facts, can be attributed to the employer of both of them."

Decision of Court of Appeal

Overturning the EAT’s decision, the Court of Appeal held that, as the statutory right not to be unfairly dismissed requires proof that there has been unfairness on the part of the employer, tribunals have to consider the “mental processes” of the person authorised to take the decision to dismiss and no one else.

In this case, that was Ms Vickers. As she was unaware of the protected disclosures, she could not be said to have been motivated by them, even if Mr Widmer's conduct constituted a deliberate attempt to bring about Ms Jhuti’s dismissal because she had blown the whistle.

Although it might seem wrong that Royal Mail should not be held liable for unfair dismissal, the Court of Appeal held that it was important to uphold the principle that a line has to be drawn between those whose conduct could be attributed to the employer and those whose conduct could not be.