Slide background

S.103A and concealed reasons

The Supreme Court has confirmed that a Tribunal may find that the reason for the dismissal is something other than that given to the employee by the decision-maker – even where that reason is genuinely held by the decision maker. Gareth Price reports.

In Royal Mail Group Ltd v. Jhuti [2019] UKSC 55 the respondent employed the claimant as a media specialist under a fixed-term contract. The respondent was subject to regulation by Ofcom. Early into the contract, the claimant took the view that a colleague may have infringed Ofcom’s rules. The claimant reported these concerns in emails to her employer.

The respondent arranged for a meeting between the claimant and her, then, line manager. As a consequence of that meeting, the claimant withdrew her allegations when it was made clear that pursuing them could jeopardise her employment. Thereafter, the claimant was subjected to significant monitoring and supervision.

After time off ill, and transition to a new line manager, the claimant was dismissed on grounds of performance. The claimant took no part in the disciplinary inquiry resulting in her dismissal (seemingly due to ill-health).

Complaint

The claimant brought a complaint under s.103A of the ERA 1996 that she had been unfairly dismissed – in part on grounds that she had made protected disclosures within the meaning of section 43A of the Act (‘whistleblowing’). The protected disclosures were the emails concerning possible breach of Ofcom’s regulations.

First Instance Decision

The Tribunal found that:

a) the initial line manager’s response to her disclosures was to seek to pretend that the claimant’s performance was inadequate;

b) the company appointed another officer to decide whether the claimant should be dismissed; and

c) having no reason to doubt the truthfulness of the material indicative of the claimant’s inadequate performance, the other officer decided that she should be dismissed for that reason.

The Tribunal found that the claimant had not been (automatically) unfairly dismissed as a result of whistleblowing because the dismissing officer had genuinely believed that the claimant’s performance had been inadequate. This was so despite the detrimental actions of the first line manager making the decision to dismiss “inevitable”.

EAT and Court of Appeal

The EAT allowed the claimant’s appeal and then the Court of Appeal allowed the respondent’s subsequent appeal – putting the Tribunal’s findings and decisions before the Supreme Court when the claimant appealed again.

Supreme Court

Although the facts were considered “extreme” and that “[i]nstances of decisions to dismiss 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”, the Supreme Court considered the following question to be of “wide importance”:

“In a claim for unfair dismissal can the reason for the dismissal be other than that given to the employee by the decision-maker?”

The Supreme Court first reviewed authorities concerning attributing a state of mind to a company. It then reviewed the case of Orr v Milton Keynes Council [2011] EWCA Civ 62, which the Court of Appeal had considered itself bound by. Very briefly, in that case, an employee was dismissed following an altercation with a manager in which the manager made statements amounting to race discrimination. Those statements were not known to the dismissing officer. The claimant took no part in the inquiry. The dismissal was found to be fair. The relevant state of mind was held to be that of the dismissing officer – a mind untainted by the statements of race discrimination.

However, in Jhuti, the Supreme Court found that the reason for the dismissal was in fact the detrimental response to the whistleblowing.

Importantly, it held that:

a) In searching for the reason for a dismissal for the purposes of section 103A of the Act, courts need generally look no further than at the reasons given by the appointed decision-maker;

b) However, if a person in the hierarchy of responsibility above the employee (in this case the initial line manager) determines that, for reason A (here the making of protected disclosures), the employee should be dismissed but that reason A should be hidden behind an invented reason B which the decision-maker adopts (here inadequate performance), it is the court’s duty to penetrate through the invention rather than to allow it also to infect its own determination.

c) If limited to a person placed by the employer in the hierarchy of responsibility above the employee, there is no conceptual difficulty about attributing to the employer that person’s state of mind rather than that of the deceived decision-maker.

It also held that s.47B – concerning detriments (not only dismissal) for whistleblowing – did not operate as an adequate or sufficient remedy in dismissal situations so as to render complaints under s.103A inapposite.

Comment

The Supreme Court expressly stated that it was not overruling Orr, only attaching a narrow qualification to it.

It also stressed that the facts of Jhuti were likely to be very uncommon. That may be so – it is seems that had Jhuti taken part in the disciplinary inquiries, she would have expressly stated that the monitoring was a ruse or invention as a consequence of her initial line manager’s reaction to her whistleblowing. That would have thereby brought into the dismissing officer’s mind the facts from which a Tribunal would – following Orr – be able to conclude that the reason was in fact the making of protected disclosures.

However, grey areas are possible. The employee may take part in the disciplinary inquiries, but remain silent about the belief that such inquiries were occurring only because of making protected disclosures. The employee had, of course, backed down on threat of losing their employment. If they felt dismissal unlikely, they may remain unwilling to raise the very thing that had caused them to feel like their employment was under threat in the first place. Such circumstances would still require a Tribunal to engage with a s.103A complaint in the manner the Supreme Court now requires.

The decision is probably a sensible one that prevents a legal fiction of attribution of states of minds to companies from shielding reprehensible management practice. It looks at the problem in a ‘broad and reasonable way, in accordance with industrial realities and common sense’ (see Post Office v Crouch [1974] 1 WLR 89).

Expect it to be relied on if the claimant considers there to be ulterior reasons for dismissal and the evidence shows that the dismissing officer was, in whatever way, ignorant of any facts relevant to those alleged, ulterior reasons.

Gareth Price is a barrister at Parklane Plowden. He can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..

Slide background