Unfair dismissal: whose reason is it anyway?

When the decision-maker's reason for dismissal is not the real reason.

In an unfair dismissal claim, the employer must show that the reason, or if there is more than one reason, the principal reason for the dismissal was one of the five potentially fair reasons (capability, conduct, redundancy, breach of a statutory duty or "some other substantial reason"). The tribunal will make findings about the facts which were known to the employer and the beliefs held by the employer which caused the employee to be dismissed.

Usually, the tribunal will only examine the knowledge and beliefs (at the time of the decision) of the individuals who make the decision to dismiss, for example the dismissing officer and person hearing an appeal.

How will the tribunal deal with cases where there is evidence to show that someone manipulated evidence before the decision-maker and that the real reason for dismissal was not in fact one of the potentially fair reasons? A recent case has provided clear guidance on when a tribunal can look behind an invented reason for dismissal to the real motivation of someone else in the organisation.

Case details: Royal Mail Group Ltd v Jhuti

Ms Jhuti worked in the Royal Mail Group’s media sales team. During her probation period, she reported to her line manager (Mr Widmer) concerns about a colleague’s breach of Ofcom compliance rules. Under pressure from Mr Widmer, she retracted the allegations. Mr Widmer then made working life difficult for Ms Jhuti by raising unjustified performance concerns and singling her out by holding intensive weekly performance review and target setting meetings. Ms Jhuti went on sick leave for stress and raised a grievance accusing Mr Widmer of bullying and harassment.

A different manager, Ms Vickers, undertook a paper-based review of Ms Jhuti’s performance as her probation was coming to an end. Mr Widmer told Ms Vickers briefly that Ms Jhuti had made allegations about a breach of compliance rules and that these allegations had been retracted. Ms Vickers did not speak to Ms Jhuti during her review (because of Ms Jhuti’s sickness absence) and did not have sight of the grievance, although she was aware of it. Ms Vickers dismissed Ms Jhuti on the ground of poor performance, taking into account the paper trail created by Mr Widmer.

Ms Jhuti brought claims for detriment and automatic unfair dismissal on the grounds of whistle-blowing. An employment tribunal upheld her whistle-blowing detriment claim. However, the tribunal dismissed the automatic unfair dismissal claim on the basis that the dismissing officer did not know about the protected disclosures and so could not have been motivated by them.

There followed a series of appeals in which the tribunal's decision was initially overturned by the EAT and then reinstated by the Court of Appeal.  The Supreme Court has now clarified matters by agreeing with the EAT that Ms Jhuti's dismissal was automatically unfair on the ground of whistle-blowing.

This decision was on the basis that: "if a person in the hierarchy of responsibility above the employee determines that she (or he) should be dismissed for a 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".

Comment

This is a very important decision which is relevant to all dismissal cases and not only those which involve whistle-blowing. Where an employee can show that the real reason for their dismissal was not a fair reason, even where that real reason was unknown to the dismissing officer, a tribunal can find the dismissal to be unfair. This will only be the case, however, where the person manipulating the dismissing officer or putting forward false evidence to the investigation is someone above the dismissed employee in the hierarchy of the organisation.  It would not apply, for example, where a colleague at the same level as the employee gave dishonest evidence to the investigation; although such a case might lead to a finding of an unfair process where the investigation was found to be inadequate in the circumstances.

In practice, it can be difficult for a dismissing manager to know whether the evidence put before them gives a true picture of the employee's performance or conduct. It is important that managers in this position seek to have as a full a picture of events as possible rather than relying on what they suspect to be partial evidence. Taking steps to hear the employee's version of events is a fundamental part of the investigation process, as is seeking full documentary evidence relating to any grievances or concerns raised by the employee.

Where the employee is not well enough to take part in meetings, adjustments should be made to the process to enable them to participate, such as conducting meetings by telephone, taking written submissions or allowing a representative to attend on their behalf. Where there are compelling reasons to continue a process in the employee's absence, employers can still fairly dismiss. However, this is a risky step to take and we recommend taking legal advice before doing so.