Automatic Unfair Dismissal: Can the reason for the dismissal be other than that given to the employee by the decision-maker?

December 5, 2019

 

Automatic Unfair Dismissal: Can the reason for the dismissal be other than that given to the employee by the decision-maker?

 

Section 103A of the Employment Rights Act 1996 (“the Act”) provides:

“An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.”

The question for the Supreme Court in Royal Mail Group Limited v Jhuti  [2019] UKSC 55 was whether in a claim for unfair dismissal can the reason for the dismissal be other than that given to the employee by the decision-maker?

 

What was it about?

Ms Jhuti made protected disclosures within the meaning of section 43A of the Act to her line manager (Mr Widmer). The line manager’s response to her disclosures was to seek to pretend over the course of several months that Ms Jhuti’s performance of her duties under her contract of employment with the company was in various respects inadequate. In due course the company appointed another officer (Ms Vickers) to decide whether Ms Jhuti should be dismissed. Having no reason to doubt the truthfulness of the material indicative of Ms Jhuti’s inadequate performance, the other officer decided that she should be dismissed for that reason.

In the Employment Tribunal Ms Jhuti was successful in relation to her detriment claims in respect of the actions of Mr Widmer but unsuccessful in her claim under S 103A because the decisionmaker had decided that Ms Jhuti’s performance was inadequate and had dismissed her for this reason. In rejecting her claim the Tribunal observed as follows:

“However, given Mr Widmer’s actions, including the treatment which he meted out to the claimant as a result of her protected disclosures, the email trail that he prepared in this context, and his other actions as set out in these reasons above, it was inevitable that Ms Vickers would, as she did, dismiss the claimant.”

The Employment Appeal Tribunal allowed the claimant’s appeal with Millet J determining that:

“…if someone in a managerial position, responsible for the employee, had manipulated a decision to dismiss her which had been made in ignorance of the manipulation, the manipulator’s reason for dismissal could be attributed to the employer for the purpose of section 103A.”

In the Court of Appeal Millet J’s decision was reversed. Crucially Underhill LJ felt that S 103A meant that an Employment Tribunal was obliged to consider only the mental processes of the person or persons who was or were authorised to, and did, take the decision to dismiss. The Court of Appeal did accept that it may well be possible to impute the decision where the manipulator actually played some part in the dismissal process. However Ms Jhuti’s situation was different. In order for her to succeed it was necessary to attribute to the company the facts known to Mr Widmer namely that there was no substance to the performance issues.

 

What did the Supreme Court think?

The Supreme Court allowed Ms Jhuti’s appeal. Lord Wilson who gave the only judgment concluded at paragraph 60 that:

“If a person in the hierarchy of responsibility above the employee (here Mr Widmer as Ms Jhuti’s line manager) determines that, for reason A (here the making of protected disclosures), the employee should be dismissed but that reason A should be hidden behind an invented reason B which the decision-maker adopts (here inadequate performance), it is the court’s duty to penetrate through the invention rather than to allow it also to infect its own determination.”

The company had argued that as it was possible in this case for Ms Jhuti to claim losses flowing from the detriment which might include losses which flowed from the dismissal caused by Mr Wilmer Ms Jhuti would not be without a remedy. The simple point made by the Supreme Court was that whilst these remedies may be available to an employee in Ms Jhuti’s situation, Parliament had made available to employees the additional rights and remedies under Part 10 to an employee who had been automatically unfairly dismissed.

 

What can we take away?

This judgment is not limited to automatic unfair dismissal cases it applies to all cases of unfair dismissal.

Having said that, this was an unusual case. As was observed by Lord Wilson, in most cases the Employment Tribunal will have to look no further than the reasons given by the decision-maker. Most employees will have input into the decision-maker’s inquiry. The employer will advance a reason for the potential dismissal. The employee may well dispute it and may also suggest another reason for the employer’s stance. The decision-maker will generally address all rival versions of what has prompted the employer to seek to dismiss the employee. If the decision-maker reaches a decision to dismiss the reason will then be identified.

The other important point to note is that the Supreme Court appear to have accepted that detriment remedies are available in addition to those for unfair dismissal. This leaves the door open for claims where although the dismissal is fair for say capability, if the reason for the incapability is due to detriments, losses will not necessarily cease at the date of the dismissal.

 

Peter Doughty

 

 

 

Tags:
Employment, Family, Property and Planning, Will Disputes