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Employers should tread with caution before dismissing a person who has raised public interest concerns

The Supreme Court has ruled a Royal Mail employee was unfairly dismissed for blowing the whistle, not for the alleged poor performance – based on false information – that the company’s HR department suggested was the reason for her dismissal.

The landmark judgment extends the scope of whistleblower protection and suggests that employers will need to ensure they have the complete information before dismissing an employee.

In October 2013, Ms Jhuti, a media specialist for the Royal Mail, alerted her line manager about concerns that a colleague was infringing Ofcom’s guidance and company policy around Tailor Made Incentives (TMIs) – a service the company offers to organisations that use mail as an advertising medium.

After raising her concerns, Ms Jhuti’s manager told her she was failing to meet the requirements of her role and repeatedly told that her performance was disappointing. She claimed a false picture of her performance had been created, because she had raied concerns, and that she was bullied.  She was placed on a six-week performance improvement plan in February 2014.

Ms Jhuti was signed off with work-related stress in March 2014 and never returned to the role.  She was later dismissed by the company and the reason given was her performance.  The HR manager who dismissed Ms Jhuti based her decision on a genuine belief that her performance had been inadequate.  However, the decision was based on information given to HR by Ms Jhuti’s manager.

Ms Jhuti took a claim for whistleblowing detriment and unfair dismissal to an employment tribunal.  The first instance tribunal found in favour of Royal Mail, but the Employment Appeal Tribunal decided that the real reason for the dismissal was the whistleblowing. However, this decision was subsequently overturned by the Court of Appeal, which held that the tribunal was only required to take only the processes of the decision-maker and the information the decision-maker had received into account.The Supreme Court’s judgment reversed the Court of Appeal’s decision, finding that the real reason for her dismissal was the fact that protected disclosures were made, and that the real reason had been hidden behind an invented one.

Protect on the Jhutiv vs Royal Mail Supreme Court

It is not unusual for whistleblowers to suffer at the hands of their managers who try to find reasons to rid themselves of the “troublemaker”, including by alleging poor performance. Too often on our advice line we speak to whistleblowers who have been discredited and disciplined on other issues after raising legitimate concerns.

This judgment is a step in the right direction.  Employers should tread with caution before dismissing someone where there is a background of that individual raising public interest concerns.

In this case, the decision maker had looked at the performance concerns and decided on genuine grounds that this was sufficient to determine a dismissal.  However, the reason that the performance issues were raised was because another manager had created a false picture of Ms Jhuti’s performance. The Supreme Court’s decision shows that Courts will need to look further into the “hidden” reasons for a dismissal, rather than just consider the motive of decision maker if that person is relying on “tainted” information given by another manager.

While this is a helpful judgment,  more needs to be done to ensure the employer has a positive duty to protect individuals and prevent harm from the outset.