In the recent case of Royal Mail Group Limited v Jhuti, the Employment Appeal Tribunal decided that an employee had been automatically unfairly dismissed even though the manager responsible for the decision had been unaware of her protected disclosures.
After only 4 weeks of employment, Ms Jhuti became suspicious that her colleague had breached Royal Mail’s policies and Ofcom requirements. She informed the team leader and was advised to admit she had been mistaken and to retract her allegations. Fearing for her job, she did just that. She was subsequently given an “ever changing unattainable list of requirements” and was put on a performance management plan. Ms Jhuti complained to HR that she was being harassed and bullied as a result of her disclosures, but this was not dealt with properly.
A different manager was then appointed to review Ms Jhuti’s performance. She was not given copies of Ms Jhuti’s emails containing the disclosures but became aware that she had been upset about something. When asked, the team leader told the manager that Ms Jhuti had complained about improper conduct at Royal Mail but had subsequently retracted her allegations. The manager did not meet with Ms Jhuti (as she was unwell) and took the information from the team leader at face value. Ms Jhuti was dismissed for poor performance.
The Employment Tribunal found that Ms Jhuti had made protected disclosures and had been subjected to detriments. However, it decided that she had not been automatically unfairly dismissed because the decision was not based on someone else’s motivation. The manager had been unaware of Ms Jhuti’s disclosures and genuinely believed she was a poor performer. On appeal however, the EAT took a different approach, noting that the team leader had intentionally misled the manager about Ms Jhuti’s disclosures. The EAT considered it was imperative that the team leader’s reason and motivation should be taken into account and concluded that it was inevitable that Royal Mail would be found to have dismissed Ms Jhuti because she had made protected disclosures.
It remains to be seen whether an employer would be held liable if the manipulation is done by someone in a non-managerial position who is not responsible for the employee.