“Regulation beyond the echo chambers”: who is listening?
Employers should take note that, in Royal Mail Group v Jhuti, the EAT has 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 whistleblower.
This is not good news for employers - previously it was thought that a decision maker would, at the very least, need to be aware of the relevant protected disclosures for a dismissed employee to make out their case. This decision therefore has the potential to bolster an employee’s prospects of clearing the tricky hurdle of causation when bringing a claim for automatic unfair dismissal under the whistleblowing legislation.
Ms Jhuti was employed as a media specialist by Royal Mail and she raised with her line manager, Mr Widmer, a number of (what the Employment Tribunal accepted were) protected disclosures about regulatory breaches. During a meeting with him, Ms Jhuti was then put under pressure to send an email retracting her protected disclosures and was subject to an “ever changing unattainable list of requirements” in an attempt to force her to resign, as well as various other detriments. The Employment Tribunal had no trouble accepting that these detriments were on account of her protected disclosures.
However, another manager was appointed to review Ms Jhuti’s position with Royal Mail and she held the mistaken, but honest, belief that it was a “bona fide performance procedure”. The decision maker was misled by Mr Widner about the nature and existence of Ms Jhuti’s protected disclosures and he only showed her the retraction email, which Ms Jhuti had written under pressure from him. The final decision was that Ms Jhuti should be dismissed for poor performance. The Employment Tribunal found that, because Mr Widner had misled the decision maker, there was no way that the protected disclosures could have played any part in the decision to dismiss Ms Jhuti – as such, her claim for automatic unfair dismissal must fail.
The EAT, in overturning this first instance decision, summarised its finding succinctly:
“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.”
In practical terms, causation is often the most difficult aspect of a whistleblowing case to make out. There is often a myriad of other factual issues which prevent the issue from being clear cut and often several individuals are involved at various stages – especially in large organisations with dedicated HR teams. This no doubt plays a part in the fact that only 5% of whistleblowing are successful at a hearing according to the Ministry of Justice’s statistics.
The decision in Jhuti shows that an employer cannot necessarily rely on such breaks in the chain of causation any longer. They should exercise real caution where issues of whistleblowing arise and they must ensure that their internal processes are robust and thorough. If, as was the case here, HR has knowledge of the protected disclosures and other relevant evidence, then at the very least they should pass on all this information to the decision maker.
It also illustrates a trend in the EAT towards broad interpretation of protected disclosure legislation in favour of employees. For further information, see our blogs last year on Underwood v Wincanton and Chestertons v Nurmohamed (the latter of which is due to be heard in October this year by Court of Appeal).
Overall, this is not a decision which will please employers and may well lead to an increase in the number of whistleblowing claims which are successful in the Tribunals.
If you need advice in relation to a whistleblowing issue, please contact a member of our employment team.
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