The Court of Appeal has overturned the EAT ruling in Royal Mail v Jhuti, although a further appeal has been filed. The EAT had ruled that the reason for a dismissal can be the employee’s whistleblowing, even where the decision-maker is unaware of this, if their decision has been manipulated by a manager aware of the protected disclosure and motivated by a desire for retribution. The Court of Appeal disagreed: a decision made by someone in ignorance of the facts, which is manipulated by someone else aware of those facts, cannot be attributed to the employer (save perhaps where the manipulation is by someone high up in the hierarchy such as a CEO, or by a manager with some responsibility for the investigation).
The Court did note (obiter) that it might be possible for the employee nevertheless to recover the loss caused by the dismissal as part of the damages for a claim of unlawful detriment in respect of the manipulator’s conduct. It therefore remains prudent for decision-makers to ensure they carry out a full investigation. Where the employee is at risk of disciplinary or performance sanctions based on evidence supplied by a manager aware of whistleblowing disclosures, HR should consider informing the decision-maker. In Jhuti the line manager had fabricated evidence of poor performance, setting unattainable targets to punish her for whistleblowing, and had told the decision-maker that the employee had retracted her allegations on the basis that it was a misunderstanding; the decision-maker accepted this without interviewing the employee (who was unwell).
Employers should also ensure they have a whistleblowing policy and managers are trained on whistleblowing protection, highlighting the protection against detriment and the potential for managers to be held personally liable for post-dismissal losses; please do get in touch with your usual HSF contact if you would like any assistance.
The issue of personal liability for detriment amounting to dismissal is due to be considered by the Court of Appeal in International Petroleum v Osipov in July 2018 (the EAT ruling is summarised here).