A recent Supreme Court decision highlights the importance of a thorough investigation of the purported grounds for dismissing an employee, particularly if there could be reasons why a line manager might have engineered the grounds.  The Court ruled in Royal Mail Group v Jhuti that, if a person in the hierarchy of responsibility above an employee determines that the employee 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.

In this case the real reason for dismissal was a protected disclosure which had been hidden from the decision-maker by the employee’s line manager, who had fabricated performance concerns out of a desire for retribution.  The employer was liable for an automatically unfair dismissal for whistleblowing, even though the decision-maker relied in good faith upon the invented reason of poor performance.

The principle in this decision will apply to all types of unfair dismissal claim, not just for whistleblowing.  Decision-makers will need to be live to the possibility that the ostensible reason for disciplinary action presented to them may have been manufactured by a line manager to hide another reason.  The case highlights the importance of interviewing the employee and following up on any suggestions of a hidden motive on the part of any line managers involved in instigating the disciplinary process or providing evidence.  In this case the decision-maker was appointed to ‘review’ the evidence rather than investigate matters for herself.  She had failed to interview the claimant (as she was unwell) and had relied on the line manager’s assurances that the claimant had accepted that her original whistleblowing disclosures were based on a misunderstanding (when in fact she had been put under intense pressure to say she accepted this).  It would also be prudent for HR to consider whether relevant background, such as earlier whistleblowing disclosures or grievances or other potential reasons for personal animosity on the part of a relevant manager, should be brought to the decision-maker’s attention to take into account.

Manipulation carried out by an employee at the same level or lower than the claimant will not impact on what is deemed to be the reason for dismissal.  However, employers should also bear in mind that the motivation of someone who is not the decision-maker but who is involved in investigating the disciplinary charge may be attributed to the employer.  Further, even if a manipulator’s actions are not attributed to the employer in determining the reason for dismissal, the dismissed employee may have a detriment claim against the manipulator, for which the employer is likely to be vicariously liable.

Anna Henderson

Anna Henderson
Professional Support Consultant, London
+44 20 7466 2819