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Dismissal Based on Hidden Reason - Does It Matter?

on Friday, 06 December 2019.

Where an employee is dismissed, the person making the decision to dismiss is often relying on information provided by others.

If the real reason for the dismissal process is hidden from the decision maker, does this affect the fairness of any decision they take?

The usual position is that it will not as long as a fair and thorough investigation has been carried out. In such cases, it is only the facts known to the decision maker that will affect the fairness of the dismissal.

In some cases, this general approach could result in injustice for the employee. In the case of Royal Mail Group v Jhuti, the Supreme Court has attempted to address this concern.

Royal Mail Group v Jhuti

Ms Jhuti was employed by Royal Mail Group from September 2013 until October 2014. She had made protected disclosures, alleging breaches of Ofcom guidance. Her line manager retaliated by performance managing her very closely. She eventually went off sick with stress, and a senior manager dismissed her on the basis of her line manager's report of incompetence.

The senior manager dismissed Ms Jhuti because she genuinely accepted reports about her poor performance.

Whilst the Employment Tribunal accepted that Ms Jhuti had made protected disclosures, it did not make a finding of unfair dismissal because the protected disclosures were not in the mind of the decision maker. As far as the decision maker was concerned, Ms Jhuti was a poor performer.

Following a number of appeals, the case ended up in the Supreme Court which found that:

  • Ms Jhuti had been automatically unfairly dismissed - the performance management was in retaliation for blowing the whistle.

  • In cases where managers have invented a reason for dismissal to hide the real reason, the courts are entitled to look behind the invented reason.

  • This is the case even if the decision maker acted in good faith when relying on the information provided to them.

Practical Points for Employers

Cases like this always turn on the facts. In this instance, the court found the level of manipulation was extreme and commented that instances 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 be rare.

The court also pointed out that the reasoning in Ms Jhuti's case will only apply where the manipulation has been carried out by "a person who is in the hierarchy of responsibility above the employee".

It appears that the decision is intended to prevent injustice in extreme cases. It also stresses that in all cases the employer must ensure it carries out a fair and thorough investigation before taking a decision to dismiss.

For specialist legal advice on dismissals, please contact Michael Halsey in our Employment Law team on 020 7665 0842, or complete the below form.

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