The employee was a whistleblower, but her manager in response bullied her and dismissed her on the grounds of alleged poor performance. J suffered stress and was away from work and unable to defend herself. The decision maker, acting honestly dismissed her. The Court of Appeal allowed the appeal holding that that a tribunal required to determine the reason for dismissal under section 103A was obliged to consider only the mental processes of the employer’s authorised decision-maker.
Held: J’s appeal succeeded. The reason under section 103A for the dismissal must be correctly identified. Parliament clearly intended to provide that, where the real reason for dismissal was whistleblowing, the automatic consequence should be a finding of unfair dismissal.
Where the real reason is hidden from the decision-maker behind an invented reason, the court must penetrate through the invention. So the answer to the appeal’s key question is, ‘yes, if a person in the hierarchy of responsibility above the employee determines that she should be dismissed for one 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’.
Judges:
Lady Hale (President), Lord Wilson, Lord Carnwath, Lord Hodge, Lady Arden
Citations:
[2019] UKSC 55, [2020] WLR(D) 13, [2020] IRLR 129, [2020] ICR 731, [2020] 3 All ER 257, UKSC 2017/0207
Links:
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video
Statutes:
Employment Rights Act 1996 103A
Jurisdiction:
England and Wales
Citing:
At EAT (1) – Royal Mail Group Ltd v Jhuti EAT 19-May-2016
EAT Victimisation Discrimination: Dismissal – Whether the Employment Tribunal’s determination that dismissal was not automatically unfair under section 103A Employment Rights Act 1996 because the person who . .
At EAT (2) – Jhuti v Royal Mail Group Ltd and Others EAT 31-Jul-2017
EAT (Practice and Procedure) 1. While there is no express power provided by the ETA 1996 or the 2013 Rules made under it, the appointment of a litigation friend is within the power to make a case management order . .
Cited – Kuzel v Roche Products Ltd CA 17-Apr-2008
The claimant had argued that she had been unfairly dismissed since her dismissal was founded in her making a protected disclosure. The ET had not accepted either her explanation or that of the employer.
Held: The employee’s appeal failed, and . .
Cited – Post Office v Crouch 1974
Lord Reid said that that statutory provisions for claims for unfair dismissal ‘must be construed in a broad and reasonable way so that legal technicalities shall not prevail against industrial realities and common sense’
The idea of . .
Cited – Abernethy v Mott Hay and Anderson CA 1974
Lord Cairns said: ‘A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee. If at the time of his dismissal the employer gives a reason for it, . .
Cited – West Midlands Co-operative Society v Tipton HL 1986
All information available to an employer at the date of the termination of the employment relationship is relevant when considering the fairness of dismissal, and also any information becoming available during the course of, for example, an internal . .
Cited – Meridian Global Funds Management Asia Ltd v Securities Commission PC 26-Jun-1995
(New Zealand) The New Zealand statute required a holder of specified investments to give notice of its holding to a regulator as soon as it became aware of its holding. Unbeknown to any others in the company apart from one colleague, its chief . .
Cited – Jetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .
At CA – Royal Mail Ltd v Jhuti CA 20-Oct-2017
The employee complained of her dismissal having made protected disclosures. The company said that the dismissal was for reasons of inadequate work.
Held: The company’s appeal succeeded. Subject to possible qualifications said to be irrelevant . .
At EAT (3) – Royal Mail Group Ltd v Jhuti EAT 19-Mar-2018
Practice and Procedure
The appeal and cross-appeal challenge
(i) whether the detriment claims are in time in circumstances where the grievance detriment claim failed; and
(ii) whether the grievance detriment claim was wrongly . .
Cited – Orr v Milton Keynes Council CA 1-Feb-2011
The employee was involved in offensive and insubordinate behaviour with his team leader. He was dismissed by a more senior manager, after a hearing in which the first manager gave evidence but which the claimant did not attend. It was later shown . .
Cited – The Co-Operative Group Ltd v Baddeley CA 15-May-2014
Underhill LJ referred to a situation in which the decision-maker’s beliefs had ‘been manipulated by some other person involved in the disciplinary process who has an inadmissible motivation’. ‘For short,’ Underhill LJ had added, ‘an Iago situation’. . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 09 May 2022; Ref: scu.645433