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How should a Tribunal determine an employer’s principal reason for dismissal?

Principal Solicitor, Paul McGowan

The Supreme Court in the case of Royal Mail Group v Jhuti has considered what the principal reason for dismissal is where the real reason is disguised behind an invented reason.

Background

The Claimant 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 in fear of being dismissed. After reporting her concerns the Claimant’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. The Claimant 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 the Claimant’s employment. Ms Vickers did not see the grievance and did not interview the Claimant but did receive emails from her referencing that she was “being sacked for telling the truth”. Ms Vickers spoke with the Claimant’s manager who confirmed she had raised some issues but told Ms Vickers 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 the Claimant for poor performance.

The Claimant 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.

The Claimant brought a claim for automatic unfair dismissal for making a protected disclosure (whistleblowing).

Decision

The case made its way to the Court of Appeal which dismissed the claim. It concluded that when deciding the reason for the dismissal a Tribunal must only look at the state of mind of the person making the decision and their reasoning. The Claimant then appealed to the Supreme Court.

In allowing the appeal, the Supreme Court stated that “if a person in the hierarchy of responsibility above the employee determines that they should be dismissed for a reason but hides it behind an invented reason which the decision maker adopts, the reason for the dismissal is the hidden reason rather than the invented reason.”.

Therefore, the employer was liable for automatically unfair dismissal even though the person who made the decision to dismiss was unaware of the protected disclosure as they were attributed the knowledge of the line manager who instigated the performance procedure.

Comment

As this decision comes from the Supreme Court, it is a particularly important one. It highlights that when an individual is making a decision to dismiss an employee, they must ensure that they have been provided with all of the relevant information in order to come to a reasoned conclusion.

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