The Supreme Court has decided that an employee had been automatically unfairly dismissed as a result of protected disclosures even though the person who made the decision to dismiss her was unaware of the protected disclosures.
Usually it is accepted that the reasons given by the appointed decision-maker will be the reasons for the dismissal. However, where the real reason for the dismissal is hidden from the decision-maker behind an invented reason, it is the court’s duty to look behind the invention.
Provided that the invented reason belongs to a person placed by the employer in the hierarchy of responsibility above the employee, there is no conceptual difficulty about attributing to the employer that person’s state of mind rather than that of the deceived decision-maker.
A worker must not be subjected to any detriment by their employer on the grounds that they have made a protected disclosure and in addition, if the main reason for an employee’s dismissal is the fact that they have made a protected disclosure, that dismissal will be automatically unfair (section 103A, ERA).
In Kuzel v Roche Products Ltd  EWCA Civ 380 the Court of Appeal held that it is for the employer to prove that it had a potentially fair reason for dismissing an employee, or to prove that the reason asserted by the employee was not the real reason.
In Orr v Milton Keynes Council  EWCA Civ 62, the Court of Appeal held that an employer cannot be deemed to have knowledge of all facts known to its employees when deciding whether it was reasonable for it to dismiss. As long as a fair and thorough investigation has been carried out, it is only the facts known to the decision-maker that are relevant in determining whether the dismissal was fair.
Ms Jhuti was employed by Royal Mail Group Limited from September 2013 until her dismissal in October 2013. Soon after Ms Jhuti joined Royal Mail she sent emails to her line manager telling him of the suspected breaches of OFCOM regulations and expressing concern. Mr Widmer persuaded Ms Jhuti to retract her concerns, which she did.
Following the meeting, Mr Widmer commenced performance management against Ms Jhuti which ultimately resulted in her dismissal on the grounds of poor performance.
The dismissing officer, Ms Vickers was provided with information about Ms Jhuti’s performance, but not given any of Ms Jhuti’s emails containing the disclosures and had no knowledge of them at the time of dismissal.
Ms Jhuti lodged an appeal, which was rejected. She complained to an employment tribunal that she had been automatically unfairly dismissed as a result of making protected disclosures.
The Supreme Court allowed the appeal, holding that if a person in the hierarchy of responsibility above the employee determines that they 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.
Lord Wilson identified that the question for the court to determine was whether the tribunal had correctly identified “the reason (or, if more than one, the principal reason) for the dismissal” within section 103A of the ERA. This meant discerning the reason for taking action on the part of the company, which was a context-dependent task involving consideration the language of the statute, and its content and policy.
Lord Wilson noted that in reaching its decision, the Court of Appeal had considered itself bound by its earlier decision in Orr v Milton Keynes, in which it had found that only the knowledge of the person deputed to carry out the employer’s functions under section 98 of the ERA could be attributed to the company when determining an employer’s liability for unfair dismissal. However, Lord Wilson felt that, for various reasons, the Orr case was not a suitable basis for any articulation of principle and that its facts were not comparable to this case. In any event, Lord Wilson noted that, in paragraph 62 of the Orr judgment, Underhill LJ had identified that it might be appropriate for a tribunal to attribute to the employer knowledge held otherwise than by the decision-maker in scenarios in which a manager had had some responsibility for the conduct of the disciplinary inquiry, alongside the decision-maker.
In searching for the reason for a dismissal for the purpose of section 103A of the ERA, Lord Wilson therefore held that courts need generally look no further than the reasons given by the appointed decision-maker. However, where the real reason for the dismissal is hidden from the decision-maker behind an invented reason, it is the court’s duty to look behind the invention rather than to allow it also to infect its own determination. Provided that the invented reason belongs to a person placed by the employer in the hierarchy of responsibility above the employee, there is no conceptual difficulty about attributing to the employer that person’s state of mind rather than that of the deceived decision-maker.