ONE of the key ingredients of a whistleblowing claim is the reason for any detrimental treatment or dismissal, says Tom Scaife of Baines Wilson LLP. To succeed, the fact that the worker blew the whistle must be the reason (or main reason) for the treatment?
What if the manager dismissing the worker or dishing out the detrimental treatment has no knowledge that the worker has blown the whistle? Does that mean the claim cannot succeed?
Not if that manager has been manipulated by others who did know about the whistleblowing, according to a Supreme Court decision handed down this week.
Royal Mail Group Ltd v Jhuti
We first covered this case in July 2016 when it was considered by the Employment Appeal Tribunal.
Initially, a tribunal had found that, as the dismissing manager knew nothing about the allegations Ms Jhuti had raised, the whistleblowing claims could not succeed. It said that what the employer reasonably believes when dismissing the employee had to be determined by reference to what the decision maker actually knew, not what knowledge ought to be attributed to them. Ms Jhuti’s dismissal was therefore not by reason of the disclosures.
This was reversed by the Employment Appeal Tribunal (EAT), which found the reason for her dismissal was the whistleblowing. The motivation of the managers who knew about the whistleblowing and ‘manipulated’ the investigation could be imputed to the decision maker.
The Court of Appeal reinstated the decision of the original tribunal and Ms Jhuti appealed to the Supreme Court.
Decision
The Supreme Court unanimously allowed the appeal.
When an employee is dismissed following a protected disclosure, that dismissal will be unfair, even when the person taking the decision to dismiss is unaware that whistleblowing is the reason for the dismissal, if their decision has in some way been manipulated by others who did.
Comment
The Supreme Court’s ruling is an important judgment. Whilst it doesn’t necessarily extend the scope of whistleblowing protection, it does remove the ability of an employer to avoid liability simply by getting an independent manager to deal with e.g. a dismissal.
The key messages for employers are to ensure investigations are handled with care, looking behind any evidence if there are concerns that a witness/contributor could be misrepresenting a situation because a colleague has made a protected disclosure.
If you have any queries in relation to whistleblowing or any other HR queries please contact our employment team on 01228 552600 or 01524 548494.
