Supreme Court extends whistle-blower protection
The decision of the Supreme Court extends the scope of whistle-blower protection and is a wider approach than that taken in direct discrimination claims.
The Supreme Court has now published its decision in respect of Royal Mail Group Limited v Jhuti.
The Employment Tribunal previously made findings of fact that:
- Ms Jhuti had made protected disclosures to her line manager;
- The line manager’s response was to pretend (over the course of several months) that her performance was inadequate; and
- In due course, another officer appointed by the company decided that Ms Jhuti should be dismissed.
Importantly, the dismissing officer had no reason to doubt the truthfulness of the material indicating that Ms Jhuti’s performance was inadequate and so, from her perspective, the genuine reason for dismissal was inadequate performance. The issue was therefore whether, in an unfair dismissal claim, the reason for dismissal could be other than that given to the employee by the decision-maker. The Employment Tribunal and Court of Appeal held that it couldn’t; the Employment Appeal Tribunal (EAT) held that it could. The Supreme Court has now agreed with the EAT.
The Supreme Court decided that where a person in the “hierarchy of responsibility” above the employee (here, Ms Jhuti’s line manager), determines that the employee should be dismissed for one reason (here, the making of protected disclosures) but hides that reason behind an invented reason (here, inadequate performance) which the decision-maker adopts, then it is the duty of the court to look through than invention. The reason for dismissal will therefore be the hidden reason, rather than the invented one.
The decision of the Supreme Court extends the scope of whistle-blower protection and is a wider approach than that taken in direct discrimination claims where it is the thought-processes and motivation of the decision-maker (or makers) that remain key. Employers will need to ensure that they have a complete picture of the situation prior to dismissal to avoid findings that decisions have been taken on the basis of incorrect information, particularly where, as was the case in Jhuti, the employee is too ill to fully participate in the dismissal process.
Contact
Mark Hickson
Head of Business Development
onlineteaminbox@brownejacobson.com
+44 (0)370 270 6000
Related expertise
You may be interested in...
Opinion
Autumn statement 2023 – key take outs for employers
Opinion
Collective bargaining rights
In Person Event
Mock Employment Tribunal: for NHS and independent health
Opinion
Agency cover and strike action
Published Article
Infrastructure and social value in public contracts – making it concrete
Opinion
Updates in equality – An overview of new regulations
Opinion
Minimum Service Levels and reasonable steps – consultation response
Legal Update
Holiday entitlement and pay: Reforms ahead
Legal Update
A positive duty to prevent sexual harassment
Legal Update
Are amendments to be expected for the Arbitration Act 1996?
Press Release
Browne Jacobson advises Care Fertility Group on acquisition of CRGW
Legal Update
The commercial realities of disputes and litigation
Opinion
Bonus clawback provisions: Clear and reasonable
Legal Update
The Supreme Court considers limitation in environmental nuisance claims
Opinion
Third party intervention did not break the chain of causation in whistleblowing detriment claim
Opinion
Holiday pay claims: A series of deductions
Opinion
Monitoring workers – ICO guidance
Press Release
Browne Jacobson strengthens employment team with key partner hire
Legal Update
Greater predictability over terms for workers
Guide
Transforming EDI practices in UK insurance
Opinion
Vicarious liability of amateur sports teams for player on player injuries
Opinion
Minimum service levels and reasonable steps
Opinion
Modern slavery in the care sector – how employers can manage risks
Legal Update
Defending equal pay claims: Equal pay for equal work?
Legal Update
Part 36 combined offers – when are they beaten?
Opinion
Government response to Pregnancy Loss Review recommends actions for NHS employers
Opinion
Right to request flexible working – changes ahead for employers
Legal Update
Employment Healthcare Briefing - July 2023
Opinion
Are teacher strikes coming to an end?
Opinion
Further consultants strike announced following government pay offer
Opinion
Watering down workplace harassment proposals
Opinion
Agency worker cover during strikes
Press Release
Browne Jacobson’s patent litigation team praised for being “dynamic” and a “major player” in IAM Patent 1000 guide
Press Release
Law firm advises on MBO of insolvency and restructuring firm Bridgewood backed by DSW Capital
Legal Update
Glass ceilings and workplaces
Opinion
EU standstill provisions maintained allowing the NHS to retain and employ healthcare workers
Legal Update
School leaders survey – the results are in!
Legal Update
Employment alternative dispute resolution
Opinion
NHS Long Term Workforce Plan unveiled
