214: Employer liable where real reason for dismissal hidden from decision-maker

The Supreme Court has ruled in Royal Mail Group Ltd v Jhuti that if a manager determines that an employee should be dismissed for one reason but hides it behind an invented reason which is then adopted by the decision-maker, the reason for the dismissal is the hidden reason rather than the invented reason.

Ms Jhuti was employed by Royal Mail from September 2013 to October 2014. She made protected disclosures to her line manager alleging breaches of Ofcom guidance. Her manager convinced her to drop these allegations, but then retaliated by performance managing her with goals she could not realistically achieve and introducing intensive weekly meetings. Eventually Ms Jhuti went off sick with work-related stress. She was subsequently dismissed for poor performance by a senior manager, Ms Vickers, who did not know the background and who had genuinely relied on the line manager’s reports of Ms Jhuti’s incompetence. Ms Vickers was given incomplete correspondence and was therefore unaware of the protected disclosures, and Ms Jhuti was unable to attend meetings with her due to ongoing ill health. Ms Jhuti brought a claim for automatic unfair dismissal by reason of making a protected disclosure.

The Employment Tribunal accepted that Ms Jhuti had made protected disclosures but rejected her claim because those disclosures had not been in the mind of Ms Vickers when making the decision to dismiss her. Ms Vickers had genuinely believed that the dismissal was for poor performance. The EAT upheld Ms Jhuti’s appeal on the basis that a decision made by one person in ignorance of the true facts, due to manipulation by a manager responsible for the employee, can be attributed to the employer. However, the Court of Appeal disagreed, finding that the focus has to be on the state of mind of the person deputed by the employer to carry out the dismissal.

Reversing the decision of the Court of Appeal, the Supreme Court has now ruled that Ms Jhuti was automatically unfairly dismissed because the performance management process was instigated in retaliation for making protected disclosures. Where a decision maker was blind to the real reason for dismissal because it was hidden behind a fictitious reason, it is the court’s duty to ‘penetrate through the invention’ rather than to allow it also to infect its own judgment. In this case, the principal reason for dismissal was the making of a protected disclosure, not the fabricated performance reason.

When establishing the reason for a dismissal, courts generally only need to look at the reason given by the decision-maker. As long as a fair and proper investigation has been carried out, usually only the facts known to that decision-maker will affect the fairness of the dismissal. However, as in this case, where the real reason is hidden from the decision-maker, who is usually relying on information provided by other managers, courts must look behind the invention in order to avoid injustice to the employee. The court noted that the level of manipulation in this case was extreme and that cases where an employee’s line manager dishonestly invents a reason for dismissal will be rare. It also stressed that the reasoning in this case will only apply where the manipulation has been carried out by a person who is in the hierarchy of responsibility above the employee, not at the same level or lower.