Protected disclosures and whistleblowing dismissal: who is the decision maker for the purposes of s. 103A dismissal?

In the case of Royal Mail Limited v. Kamaljeet Jhuti UKEAT/0020/16/RN the EAT found that it is not necessarily the mind of the decision maker alone which must be examined when considering an employer’s reasons for dismissing a whistle blower.

Ms Jhuti succeeded in bringing claims of unlawful detriment contrary to s. 47B of the Employment Rights Act, 1996, although failed in her claim for “automatic” unfair dismissal contrary to s. 103A, because although her Line Manager had raised concerns with her performance record, a different Manager making the decision to dismiss her did so in good faith on the basis that Ms Jhuti was (reasonably) understood to have inadequate performance.  The dismissal decision maker was not aware of the motivation of her Line Manager advancing performance issues: that Ms. Jhuti had in fact raised protected disclosures, rather than there being a performance issue per se.

At [34] of his Judgment, Mitting J said as a matter of law:

“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.”

Mitting J (sitting alone) allowed Ms Jhuti’s cross-appeal on the basis that the Line Manager’s unlawful motivation should be treated as the reason for dismissal.  Mitting J allowed the appeal himself, as the issue raised is of general importance.

Court of Appeal Decision

The Court of Appeal in its Judgment Royal Mail Limited v. Kamaljeet Jhuti [2017] EWCA Civ 1632 reversed the EAT’s Decision.  Underhill LJ at [57] (in a Judgment well worth a read) said:

“57.        I therefore accept […] “the reason for the dismissal” under section 98 (1) of the 1996 Act the tribunal is obliged to consider only the mental processes of the person or persons who was or were authorised to, and did, take the decision to dismiss”.

At [59] of his Judgment, Underhill LJ draws a distinction from cases of “manipulation” and how such cases may be viewed differently, and “with care”.

In “Notes” following [84], Underhill LJ states:

⁵ It would of course be different if the ostensible decision-taker were more or less directly told by the CEO what to decide. His or her involvement would in such a case be a sham and the CEO would be the real decision-maker. In a true “manipulation” case the decision-maker makes a genuine decision but on tainted information (and, in this case, tainted from the top).

Points to Note

Underhill LJ [80] states that Ms Jhuti is not prevented from advancing a claim for losses flowing from her dismissal as compensation for the unlawful detriments found under s. 47B.  Underhill LJ makes the point that this cause of action should not be precluded by: “the way in which her claim had been put in the ET”.

When pleading s. 103A dismissal, it is worth pleading it as a detriment in the alternative, to avoid what might be resistance from the other side for not having done so, and once liability has been determined, it may be considered as part of detriment compensation at a remedy hearing, rather than it being what may be an unfounded unfair dismissal claim.

The underlying point to note is that unfairness is required by the employer, and that unfair conduct on part of individual managers, Line Managers, colleagues, etc., is immaterial per se, unless of course it can be shown to be the decision of the employer.

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