What happens if an employee is dismissed for whistleblowing but this reason is disguised, falsely, as a potentially fair reason?

The issue of unfair dismissal in such circumstances was addressed recently by the Supreme Court in the case of Royal Mail Group Ltd (Respondent) v Jhuti.

Ms Jhuti ‘blew the whistle’ alleging breaches of Royal Mail rules and Ofcom guidance. She was consequently deliberately subjected to detriments by her line manager including onerous performance management requirements that were unattainable. Her line manager’s manipulation of the situation led to another senior manager dismissing Ms Jhuti on the grounds of incompetence reported by her line manager, when she was not, in fact, a poor performer. The dismissing manager was not aware of the whistleblowing and accepted, in good faith, reports about her failings as genuine.

An employment tribunal dismissed Ms Jhuti’s complaint of unfair dismissal, because the whistleblowing had played no part in the dismissing manager’s reasoning. The Employment Appeals Tribunal overturned the Tribunal’s decision which was then reinstated by the English Court of Appeal. The Supreme Court agreed with the EAT.

The verdict

The Supreme Court viewed the facts of this case as 'extreme' indicating that, generally speaking, it is only necessary to look only at the reason given by the dismissing officer. However, in the facts of this case, where the line manager had decided to have the employee dismissed for an unfair reason (whistleblowing) but dressed the reason for dismissal up as a potentially fair reason, i.e. capability issues which the dismissing manager adopted, the Supreme Court said it was the court’s duty to ‘penetrate through the invention rather than to allow it also to infect its own determination.’ 

In such circumstances, the Court went on to state, that there is no difficulty about attributing to the employer that ‘inventing’ person’s state of mind and reasoning rather than that of the deceived decision-maker thereby, in this case, confirming that the real reason for the dismissal was Ms Jhuti’s whistleblowing rather than the capability issues allowing her to win the unfair dismissal case by reliance upon the hidden reason rather than the invented one.

So in certain cases, but generally speaking only in exceptional ones, for example, where there has been dishonesty, tribunals can look behind the state of mind of the dismissing officer to ascertain the true reason for the dismissal rather than the made up one relied upon in good faith by the dismissing employee.

Thompsons NI

Chambers UK, a leading guide to law firms and solicitors in the United Kingdom, has recently ranked Thompsons NI as having Band 1 lawyers in both their personal injury and employment rights work.

If you have any questions about your employment rights, contact our expert solicitors for free, no-obligation advice on 0800 138 6880 or visit our employment law page.