342: Who is really making dismissal decisions?

Generally speaking, in determining whether a dismissal is fair, an Employment Tribunal will only deem the facts actually known by the manager taking the decision to dismiss to be relevant (assuming that a fair and thorough investigation has been carried out). In 2019, the Supreme Court case of Royal Mail v Jhuti established that an exception to this principle will apply only in rare circumstances, such as where a person in the hierarchy of responsibility above an employee invents a reason for their dismissal (i.e. false performance concerns) which is then adopted by the decision-maker, known as the ‘Jhuti exception’.

In the recent case of Kong v Gulf International Bank (UK) Ltd, the Employment Appeal Tribunal (EAT) reviewed the application of the Jhuti exception and reiterated that it will apply only in very narrow circumstances:

Ms Kong was Head of Audit for Gulf International Bank. She raised concerns that a legal agreement for one of the bank’s financial products breached regulatory requirements due to a lack of sufficient safeguards. Ms Kong reported this to the Bank’s Head of Legal, Ms Harding, who disagreed with her. At a subsequent meeting, Ms Kong questioned Ms Harding’s legal awareness. Ms Harding later complained to HR and the CEO that Ms Kong had criticised her professional integrity, leading her to seek to minimise their future interactions.

Following discussions between HR and management, the decision was then taken to terminate Ms Kong’s employment. The bank stated that the reason for the dismissal was Ms Kong’s behaviour and manner with colleagues, which had resulted in some of them not wanting to work with her, and maintained that it was not connected to the protected disclosure she had raised with Ms Harding. The dismissal letter referred to Ms Kong’s questioning of Ms Harding’s integrity, which was described as falling ‘well short of the standard of professional behaviour’ expected by the bank.

Ms Kong brought various claims in the employment tribunal, including a claim for automatic unfair dismissal for having raised protected disclosures. This claim failed because the tribunal concluded that she had been dismissed for misconduct, not her protected disclosures.

Ms Kong appealed to the EAT arguing that Ms Harding had sought her dismissal because of the protected disclosures, and that her motivation should therefore be attributed to the bank following the Jhuti principle.

The EAT dismissed the appeal, ruling that the managers who had taken the decision to dismiss Ms Kong had done so because of her conduct, not because of her protected disclosures. Although Ms Harding’s complaint about Ms Kong had been motivated by the protected disclosure, the EAT agreed with the tribunal’s conclusion that it was not appropriate to attribute her motivation to the bank when it was making the decision to dismiss.

This case acts as a reminder that it will be possible only in very rare circumstances to attribute the motivation of the employer to anyone other than the person making the decision to dismiss. Jhuti will only apply where there is clear evidence of active and deliberate manipulation of decision-makers, which was not found in this case. In any event, there was no finding that Ms Harding had sought Ms Kong’s dismissal or been involved in the decision in any way. The case also highlights the importance of ensuring that disciplinary investigations are conducted fairly and thoroughly, and that the reason for any subsequent dismissal is transparent and justifiable, with appropriate documentary evidence.