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Decision Maker Knowledge

The Court of Appeal has reversed the decision of the Employment Appeal Tribunal in the case of Royal Mail v Jhuti.

Background

Ms Jhuti reported concerns of regulatory breaches to her line manager early in her employment. Her line manager suggested she had misunderstood the rules she alleged had been breached and advised her to send a retracting email, which she did. After reporting her concerns Ms Jhuti’s manager treated her differently, including requiring her to attend weekly progress meetings and setting a performance plan when there were no genuine performance concerns. Ms Jhuti saw these actions as an attempt to drive her out of her job after raising her concerns. She raised a formal grievance before being signed off sick from work in March 2014.

In April 2014, Ms Vickers was appointed to review Ms Jhuti’s employment. Ms Vickers did not see the grievance and did not interview Ms Jhuti but did receive emails from Ms Jhuti referencing concerns she had previously raised. Ms Vickers spoke with Ms Jhuti’s manager who confirmed she had raised issues but that it was a misunderstanding. He went on to disingenuously pass Ms Vickers the retracting email. Ms Vickers accepted what the line manager said and dismissed her for poor performance.

Ms Jhuti appealed the dismissal but the person appointed to hear the appeal had again accepted the evidence of the manager and confirmed the decision to dismiss for poor performance.

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

Decision

The Employment Appeal Tribunal (“EAT”) held that a decision made by a person in ignorance of the true facts, such as Ms Vickers, whose decision is manipulated by someone in a managerial position responsible for an employee and who is in possession of the true facts, can be attributed to the employer of both of them. The dismissal was therefore held to be automatically unfair.

However, the Court of Appeal has reversed the EAT decision. It held that that a decision made by a person in ignorance of the true facts, cannot be attributed to the employer. What the employer reasonably believed when dismissing the employee had to be determined to reference to what the decision maker actually knew at the time. Mrs Jhuti was therefore not unfairly dismissed.

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