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Knowledge of protected disclosure

Background

Ms Jhuti was employed by Royal Mail from September 2013 until she was dismissed in October 2014.

Soon after joining Royal Mail, Ms Jhuti reported to her line manager concerns about what she saw as regulatory breaches. Her line manager responded by questioning her understanding of the rules and requirements that she thought had been breached. He then advised her to admit that she had made a mistake and send a retracting email, which she did, because she feared that she would lose her job if she did not.

After reporting her concerns, Ms Jhuti’s manager’s behaviour towards her changed and he asked her to attend weekly progress meetings, set “ever changing, unattainable list of requirements” and set a performance plan when there were no genuine performance concerns. The Claimant saw these actions as an attempt to drive her out of her job after raising her concerns. She complained to HR on a couple of occasions saying that she felt bullied and harassed by her manager after raising the above concerns. Nothing was done in response to her complaints.

The Claimant eventually raised a formal grievance and was signed off sick in March 2014. Royal Mail responded by offering her a termination payment worth one year’s salary, which she rejected.

In April 2014, an independent manager, Ms Vickers, was appointed to review the Claimant’s employment. Ms Vickers did not see the grievance and did not interview the Claimant but did receive emails from Ms Jhuti which included references to the concerns she had raised with her manager. Ms Vickers however spoke to Ms Jhuti’s line manager who confirmed that she had raised issues but he explained it was a misunderstanding and gave Ms Vickers the retracting email from the Claimant. Ms Vickers accepted what the line manager told her and dismissed Ms Jhuti for poor performance.

Ms Jhuti appealed the dismissal but this was not upheld, the person appointed to hear the appeal again accepted the evidence of the line manager.

Ms Jhuti therefore brought a claim for automatic unfair dismissal for making a protected disclosure (whistleblowing).

Decision

The Employment Appeal Tribunal (EAT) found that Ms Vicker’s decision to dismiss could still be attributed to Royal Mail even if she was not in possession of all the facts or had been misled by another employee. Some of the key factors relied on by the EAT was that Ms Jhuti’s manager realised that the disclosures made by Ms Jhuti were serious and significant, he deliberately subjected her to various detriments following the disclosure and deliberately misled and lied to Ms Vickers. Once the EAT took into account the manager’s reason and motivation into account, the EAT held that it was clear that Ms Jhuti was dismissed because she had made protected disclosures and the dismissal was automatically unfair.

Advice

Employers should treat all concerns raised by employees seriously and HR should act promptly when receiving complaints such as the ones raised by Ms Jhuti. It is however clear that this decision makes it more difficult for employers to avoid a finding of automatic unfair dismissal, even when an employee is withholding crucial information. In this case, the attempt to terminate employment on such high terms was also considered as indicative of the fact that a protected disclosure had been made and the employee treated detrimentally.

It is important any potential whistleblowers are treated fairly to avoid potentially costly and uncapped claims at the Employment Tribunal and in this case a discussion with the employee and HR may have provided more protection to the employer.

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