Supreme Court decision in Royal Mail Group Ltd v Jhuti

The full judgment can be read here

The Supreme Court has made clear that if an employee (in the hierarchy of responsibility above the employee, such as their line manager) deliberately hides the real reason for dismissal behind an invented reason which the decision-maker adopts (such as pretending it is performance-related rather than whistleblowing), the reason for the dismissal is the hidden reason rather than the invented reason.

In this case, Ms Jhuti made a number of protected disclosures to her line manager that she suspected improper conduct by her line manager’s team. Her line manager responded by seeking to pretend that her performance was inadequate and subjected her to intensive performance improvement targets. An independent manager was appointed to decide whether she should be dismissed but was not provided with the evidence regarding the disclosures. Ms Jhuti was too ill to meet with the manager to make her case. Genuinely believing that she was a poor performer, the independent manager decided that she should be dismissed for that reason. The key question considered by the Supreme Court was whether the reason for dismissal could be different to that given by the decision-maker.

• In previous rulings, the Tribunal and Court of Appeal held that there could be no automatic unfair dismissal where the decision-maker did not know about, and could not be motivated by the protected disclosures. However, in these specific circumstances, the Supreme Court disagreed.
• It relied upon the common sense approach set out in case law that “legal technicalities shall not prevail against industrial realities and common sense”.
• It distinguished existing case law on the basis that in this case the decision-maker was deceived and/or manipulated because she was presented with falsely constructed evidence.
• The Court also made clear that where a person is placed by the employer in the hierarchy of responsibility above the employee, there is no difficulty in attributing to the employer that person’s state of mind rather than that of the deceived decision-maker.

The facts of this decision are quite rare. The judgment acknowledges that “instances of decisions taken in good faith, not just for a wrong reason but for a reason which the employee’s line manager has dishonestly constructed, will not be common”.

Practical tips

• Employers should be clear and transparent in their decision-making processes and should train managers appropriately on carrying out investigations.
• HR should ensure that the person deciding whether to terminate an employee’s employment has access to all the relevant information. This may include information about disclosures that an employee has raised with a line manager even if the allegations were withdrawn or not fully investigated.
• The decision-maker must probe appropriately to test the veracity and reliability of evidence produced. Here the decision-maker relied on the line manager’s evidence of poor performance, without realising that the individual had made whistleblowing allegations. The decision-maker was only aware that the employee had made allegations about another employee’s conduct, but understood that these allegations had been withdrawn by the employee.
• Even if an employee is unwell, a decision-maker should consider testing the version of events provided by a line manager by offering the employee an opportunity to provide comments by phone or email, if not able to attend in person.