Mrs Jhuti (J) blew the whistle to her line manager, Mr W, that Royal Mail Limited (RM) was in breach of its regulatory requirements, which Mr W subsequently put pressure on J to rescind. J withdrew the complaints because she feared for her job if she did not comply. Mr W responded by subjecting J’s performance to intense scrutiny, resulting in J raising a grievance against Mr W, alleging harassment and bullying as a result of her whistleblowing. J was subsequently signed off sick from work whilst the grievance was investigated.
RM appointed another manager, Ms V, to review J’s performance and take appropriate action. Ms V was not aware of J’s grievance but understood J to be upset regarding work related matters. She asked Mr W whether he knew what had upset J and was told that J had made some allegations of improper conduct but that J had misunderstood the situation and so withdrawn the allegations. This was true but did not consider the intense pressure J was put under to withdraw the allegations.
Ms V was satisfied with this explanation and as J was still on sick leave, she did not call J into a meeting to discuss this further. Taking the information available to her, Ms V concluded that J should be dismissed for poor performance.
The Employment Tribunal (ET) decision
J brought claims in the ET for automatic unfair dismissal and being subjected to a detriment (harassment and bullying) as a result of her whistleblowing. The detriment claim was successful, however, her claim for automatic unfair dismissal was not. The key reason the claim failed was because Ms V had no knowledge of J’s whistleblowing and the ET found that her genuine belief was that J was simply a poor performer.
J appealed the ET’s decision.
The Employment Appeal Tribunal (EAT) decision
The EAT reversed the decision relating to the automatic unfair dismissal claim and found that J had been automatically unfairly dismissed. In doing so, it attributed Mr W’s knowledge to the employer company, RM and therefore imposed a high burden on the employer to investigate every line of enquiry in detail.
RM appealed the EAT’s decision and the case was subsequently decided by the Court of Appeal.
Court of Appeal
The Court of Appeal reinstated the decision that J had not been unfairly dismissed.
The Court of Appeal said that the tribunal had to consider what knowledge Ms V had in her possession at the time of the dismissal and whether, having regard to that knowledge, Ms V genuinely believed that dismissal was appropriate.
This is an interesting case because it deals with a very common dilemma facing HR practitioners – disciplinary and grievance procedures being used in parallel for the same employee. In this case, the disciplinary procedure and grievance were entirely unrelated and the case reinforces the benefits of having an information barrier between the decision makers in each process.
The case also shows the importance of managing this kind of situation closely and although time consuming, dealing with unrelated matters separately can significantly reduce the risk for employers.
That said, the Court of Appeal left it open for dismissals to be tainted if someone in a position of authority dishonestly manipulates the decision. For example, it remains possible that a well thought through decision based on an intentionally misleading report by an investigating manager, for example, could taint the decision of the dismissing officer. This is unlikely to be a common scenario in most workplaces but is one that the tribunals will have to grapple with at some stage.
For further advise on the issues that this article raises, please contact us.